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

                                                 FILED
                                                                            June 29, 2009
                                     No. 08-41034
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

RAFAEL GONZALEZ-DE LEON

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:08-CR-348-2


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Rafael Gonzalez-De Leon appeals his sentence following his guilty-plea
conviction for possession with intent to distribute marijuana, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C). De Leon argues that the district court erred
in sentencing him because it used the gross weight of the marijuana, including
its packaging, to determine the applicable base offense level. De Leon contends
that if the district court had applied the typical reduction for packaging, his



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-41034

advisory sentencing range might have been less than the sentence actually
imposed.
      A district court’s determination of the amount of drugs attributable to a
defendant for sentencing purposes is a finding of fact that this court generally
reviews for clear error. United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir.
1998). However, Rodriguez-De Leon did not dispute in the district court the
drug quantity used to calculate his base offense level. Thus, plain error review
applies. United States v. Sparks, 2 F.3d 574, 589 (5th Cir. 1993).
      Rodriguez-De Leon has not shown that the district court committed any
error, plain or otherwise, in determining the drug quantity for sentencing
purposes. Rodriguez-De Leon did not present any evidence to refute the PSR’s
finding that he was responsible for more than 60 kilograms of marijuana. There
was no evidence in the record concerning the net weight of the marijuana, and
Rodriguez-De Leon did not present any competent evidence to refute the PSR’s
quantity attribution (e.g., the actual or estimated weight of the packaging).
Rodriguez-De Leon specifically failed to show that the difference between the
gross weight and the net weight of the drugs exceeded 5.45 kilograms (i.e., the
amount necessary to affect his offense level). Given the absence of contrary
evidence concerning the proper drug quantity, the district court was entitled to
make its drug quantity calculation without further inquiry. See United States
v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). Accordingly, Rodriguez-De
Leon has failed to establish that the district court committed error of any type.
See id.; Sparks, 2 F.3d at 589.
      AFFIRMED.




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