     Case: 09-51166 Document: 00511331091 Page: 1 Date Filed: 12/23/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 23, 2010
                                     No. 09-51166
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OSCAR DEL VALLE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-3356-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Oscar Del Valle pleaded guilty to conspiracy to possess with the intent to
distribute and possession with the intent to distribute 100 kilograms or more of
marijuana. See 8 U.S.C. §§ 841(a), 846. He appeals the 110-month sentence
imposed upon his conviction. He argues (1) that the district court erred in
determining the relevant conduct attributable to him under the Guidelines,
(2) that the district court erred in finding a common course of conduct when
there was a 19-month lapse in criminal activity, and (3) that the district court

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
       Case: 09-51166 Document: 00511331091 Page: 2 Date Filed: 12/23/2010

                                   No. 09-51166

erred in applying a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c) based
on an aggravating or leadership role in the conspiracy.
        Del Valle has not shown that the district court clearly erred in holding him
accountable for 21 prior loads of marijuana, given the undisputed evidence that
he coordinated the 21 prior shipments using the same supplier of sodium
bentonite, in which the marijuana was hidden, the same UPS warehouse, and
similar fictitious recipients on the bills of lading. The district court did not hold
Del Valle accountable for prior loads for which there was no bill of lading, even
though nine other loads were listed on a printout from the UPS database. The
district court’s findings on relevant conduct were supported by testimony at
sentencing from the UPS employee who opened an account for Del Valle and
Immigration and Customs Enforcement Agent Mike Ramirez. See U.S.S.G.
§ 1B1.3; United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009); see, e.g.,
United States v. Medina, 161 F.3d 867, 876 (5th Cir. 1998). The district court’s
findings were plausible in light of the record as a whole. See Rhine, 583 F.3d at
885.
        Del Valle argues that because of the 19-month gap after the first 18 of the
21 bills of lading, the remaining bills of lading did not make all 21 a common
course of conduct for which he could be held responsible. See § 1B1.3, comment.
(n.9(A)). He challenges as implausible and clearly erroneous the district court’s
finding that all shipments of sodium bentonite from 2002 to 2005 were part of
a common course of conduct of marijuana trafficking.
        Given the extreme similarity of all 21 shipments - same supplier of sodium
bentonite, same UPS warehouse, same modus operandi of hiding marijuana in
the sodium bentonite - the district court did not clearly err in finding that all 21
bills of lading represented marijuana loads that were part of the same course of
conduct or part of a common scheme or plan. See United States v. Moore, 927
F.2d 825, 827 (5th Cir. 1991); Rhine, 583 F.3d at 884.



                                          2
    Case: 09-51166 Document: 00511331091 Page: 3 Date Filed: 12/23/2010

                                No. 09-51166

      Del Valle’s challenge to the two-level enhancement pursuant to § 3B1.1(c)
also lacks merit. A defendant qualifies for a § 3B1.1 enhancement if he was the
organizer, leader, manager, or supervisor of one or more other participants.
§ 3B1.1, comment. (n.2). Del Valle told agents he would not provide the name
of the person who was paid only $200 to store marijuana. The district court
found at sentencing that Del Valle oversaw other individuals involved in the
transaction.   The district court found that Del Valle was the person who
contracted with UPS and other businesses to facilitate the transport of the
drugs.   The district court found further that Del Valle was involved in an
extensive operation that involved more than one man. Del Valle has not shown
clear error in the district court’s application of the two-level enhancement
pursuant to § 3B1.1(c). See Rhine, 583 F.3d at 885.
      AFFIRMED.




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