           IN THE UNITED STATES COURT OF APPEALS of Appeals
                                           United States Court
                                                    Fifth Circuit
                    FOR THE FIFTH CIRCUIT        FILED
                                                                            June 5, 2009

                                                                       Charles R. Fulbruge III
                                       No. 08-10752                            Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JOSE GUILLERMO ORDONEZ

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:08-cr-00042-A


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Jose Guillermo Ordonez pleaded guilty pursuant to
a written plea agreement to a single-count indictment charging him with
possession with the intent to distribute a controlled substance.                   The plea
agreement did not contain a waiver of appellate rights.                 The district court
sentenced Ordonez to 212 months of imprisonment, to be run consecutively to
any sentence imposed in pending state court proceedings. Ordonez appeals.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10752

                                   I. FACTS
      Ordonez stipulated to the following underlying facts: Ordonez was driving
a tractor trailer through Texas in January 2008. A Texas Department of Public
Safety trooper stopped Ordonez’s tractor trailer. The trooper became suspicious
that Ordonez might be involved in illegal activities, so he asked for consent to
search the trailer. Ordonez consented to the search. The trooper discovered
three bags containing bricks of cocaine. The trooper placed Ordonez under
arrest. Ordonez admitted that he knew the cocaine was in his vehicle and that
he was to be paid $8,000 to transport the cocaine. Analysis revealed that there
were 25.27 kilograms (approximately 55.7 pounds) of cocaine.
      The presentence report (PSR) included the following additional details:
Ordonez’s tractor trailer was loaded with boxes of Hallmark greeting cards. The
trooper discovered the drugs after tracking marks in the dust on top of the boxes
where something had been dragged over the boxes of greeting cards. Prior to his
arrest, Ordonez informed the trooper that he did not load anything into the
trailer and that he was only the driver. He also told the trooper that he feared
for his ex-wife’s safety because he was talking to the police.
      Ordonez spoke to an agent from the Drug Enforcement Agency following
his arrest. Ordonez told the agent about “his prior drug trafficking activities,
information regarding a cocaine smuggling organization operating out of El
Paso, Texas, as well as his involvement with other individuals participating in
drug trafficking.” Based on the information Ordonez provided, the probation
officer estimated that Ordonez was responsible for 126.35 kilograms of cocaine.
      The PSR calculated Ordonez’s base offense level at 36, based on the
probation officer’s estimate of the amount of drugs involved. Ordonez received
a two-level enhancement pursuant to U.S.S.G. § 3B1.3 because he used his
special skill as a commercial truck driver to facilitate the offense. Following a
three-level reduction for acceptance of responsibility, Ordonez’s total offense

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level was 35. His criminal history category was II. The resulting Guidelines
range of imprisonment was 188 to 235 months.
      Ordonez filed objections to the PSR arguing, inter alia, that the drug
activities he admitted to following his arrest should not be used against him
even though such a use is permissible under the Guidelines. He also objected to
the two-level adjustment on the grounds that possession of a commercial driver’s
license (CDL) is not a special skill and that, even assuming possession of a CDL
is a special skill, the facts did not support the conclusion that the use of such
skill significantly facilitated the commission of the instant offense. Ordonez also
objected to the fact that the PSR did not recommend a reduction in his offense
level based on his mitigating role in the overall offense. Ordonez re-urged his
objections in response to the Addendum to the PSR.           Prior to sentencing,
Ordonez moved for a downward variance from the advisory Guidelines range and
requested a sentence of 120 months of imprisonment.
      The district court overruled Ordonez’s objections at sentencing.        The
district court also denied Ordonez’s motion for a downward variance.          The
district court sentenced Ordonez to 212 months of imprisonment, to run
consecutively to any sentence imposed in Ordonez’s pending state court
proceedings. The district court also ordered Ordonez to serve three years of
supervised release. Ordonez objected to the district court’s order requiring his
federal sentence to run consecutively to his yet-to-be imposed state sentence.
The district court also overruled that objection. Ordonez filed a timely notice of
appeal.


                          II. STANDARD OF REVIEW
      Generally, this court reviews criminal sentences for reasonableness. Gall
v. United States, — U.S. —, 128 S. Ct. 586, 594 (2007). Using a bifurcated
approach, this court first determines whether the district court committed any

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procedural errors, “such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” Id. at 597. In making that
determination, “[w]e review the district court's interpretation and application of
the Sentencing Guidelines de novo and its factual findings for clear error.”
United States v. Gonzalez, 445 F.3d 815, 817 (5th Cir. 2006).
      If the district court’s decision is procedurally sound, this court will
“consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard . . . tak[ing] into account the totality of the
circumstances. . . .”   Gall, 128 S. Ct. at 597.    A post-Booker discretionary
sentence imposed within a properly calculated Guidelines range is entitled to a
rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006); see also Rita v. United States, 551 U.S. 338, 347 (2007)
(holding that appellate courts may apply a presumption of reasonableness to
sentences imposed within a defendant’s advisory Guidelines range).


                                 III. ANALYSIS
      Ordonez argues that the district court committed procedural error with
respect to: (1) calculation of the quantity of drugs involved; (2) finding that his
use of a CDL merited a two-level “special skill” enhancement under U.S.S.G. §
3B1.3; (3) denying a reduction under U.S.S.G. § 3B1.2 based on his mitigating
role in the offense; and (4) ordering the sentence to run consecutively to a not-
yet-imposed state court sentence. In addition to the asserted procedural errors,
Ordonez argues that the sentence is substantively unreasonable.




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                 A. Procedure: Calculation of Drug Quantity
      Ordonez argues that the district court erroneously overruled his objection
to the amount of drugs for which he was being held responsible. He argues that
he admitted these drug amounts “in a spirit of full cooperation” before counsel
could obtain an agreement from the Government not to use such statements
against him. Ordonez concedes that there was no formal agreement under
U.S.S.G. § 1B1.8(a) that would prevent the use of such information. He argues,
however, that the use of the information unfairly increases his sentence and
violates the sentencing goals of § 3553(a).
      This court reviews a district court’s application of the Guidelines de novo.
Gonzalez, 445 F. 3d at 817.   Accordingly, Ordonez’s arguments regarding the
use of his debriefing information are subject to de novo review.
      Where a defendant agrees to cooperate with the government by
      providing information concerning unlawful activities of others, and
      as part of that cooperation agreement the government agrees that
      self-incriminating information provided pursuant to the agreement
      will not be used against the defendant, then such information shall
      not be used in determining the applicable guideline range, except to
      the extent provided in the agreement.

U.S.S.G. § 1B1.8(a)
      The Guidelines explicitly require a court to enforce an agreement by the
Government that it will not use self-incriminating information against the
defendant in calculation of a sentence. Id. Ordonez concedes that there was no
such agreement in this case.      Accordingly, the district court’s use of the
debriefing information was not contrary to the Guidelines.
      To the extent Ordonez argues that the district court committed procedural
error by failing to take his cooperation into account when considering the
sentencing factors of § 3553(a), his argument is without merit. A district court
is required to consider the § 3553(a) factors when determining an appropriate



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sentence.   Gall, 128 S. Ct. at 597.     These factors include the nature and
circumstances of the offense, the history and characteristics of the defendant, the
need for the sentence to reflect the seriousness of the offense, the need to
promote respect for the law and provide just punishment, the need to afford
adequate deterrence to criminal conduct, and the need to protect the public from
further crimes. § 3553(a). At sentencing, the district court stated that it would
take the extent of Ordonez’s cooperation with authorities during his debriefing
into account when determining what sentence to impose. The record does not
support Ordonez’s argument that the district court’s consideration of the
debriefing information resulted in an unfair sentence. See Gall, 128 S. Ct. at
597.


                   B. Procedure: Special Skill Enhancement
       Ordonez argues that the district court erred in determining that he used
a special skill, namely the possession of a CDL, to significantly facilitate the
commission of the offense. Ordonez argues that his possession of a CDL does not
constitute a “special skill” and that it did not significantly facilitate the
commission of the offense as required by the Guideline.         In support of his
argument, he relies on United States v. Gallardo, 266 F. App’x 468 (7th Cir.
2008) (unpublished).
       The Guidelines permit a two-level enhancement “[i]f the defendant . . .
used a special skill[] in a manner that significantly facilitated the commission
or concealment of the offense.” U.S.S.G. § 3B1.3. A “special skill” is one “not
possessed by members of the general public and usually requiring substantial
education, training or licensing.” § 3B1.3 cmt. n.4. “Because ‘the application of
§ 3B1.3 is a sophisticated factual determination,’ we review a § 3B1.3 sentencing
enhancement under a clearly erroneous standard.” United States v. Deville, 278



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F.3d 500, 508 (5th Cir. 2002) (quoting United States v. Fisher, 7 F.3d 69, 70 (5th
Cir. 1993)).
      We have never directly addressed the issue of whether a CDL may
constitute a “special skill,” but other courts have determined that a special skill
enhancement based on the ability to drive a tractor trailer truck may be
appropriate. See United States v. Mendoza, 78 F.3d 460, 465 (9th Cir. 1996)
(determining that “ the driving of an 18-wheeler without any reported mishap
over several years is a skill well beyond that possessed by the general public”
and is sufficient to constitute a “special skill”); United States v. Lewis, 41 F.3d
1209, 1214 (7th Cir. 1994) (“Truck driving requires technical knowledge or
ability that the average citizen does not possess.”). We agree that possession of
a CDL is a special skill.
      That does not end our inquiry. Though possession of a CDL is a “special
skill,” it triggers the sentencing enhancement under § 3B1.3 only if it
“significantly facilitated” the underlying offense. Ordonez cites Gallardo for the
proposition that possession of a CDL does not significantly facilitate the
concealment or transport of a relatively small amount of drugs. 266 F. App’x at
468. There, the defendant hid 50 kilograms of cocaine in his truck’s sleeper
bunk, which the court analogized to hiding the drugs “in the trunk of an
ordinary sedan.” Id. at 469. The Seventh Circuit concluded that possessing the
CDL did not significantly facilitate hiding the drugs and that the district court
clearly erred in applying the enhancement. Id. at 469–70.
      Gallardo is distinguishable because the drugs in Ordonez’s truck were not
hidden in the cab, which would be analogous to transporting drugs in an
ordinary vehicle. Secreting the drugs in a large trailer loaded with legitimate
cargo obviously makes the drugs much more difficult for the police to discover.
In these circumstances, we agree with the district court’s finding that Ordonez’s



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“special skill,” possession of a CDL, “significantly facilitated” the commission of
the underlying offense.


                      C. Procedure: Minor Role Reduction
      Ordonez argues that the district court erred by denying him a reduction
in his offense level for his minor role in the offense. He argues that his status
as a mere drug courier, along with the fact that he was not involved in and did
not know anything about the distribution of the drugs, warrants a reduction
under U.S.S.G. § 3B1.2.
      A district court may decrease a defendant’s offense level by two levels if it
finds that the defendant was a minor participant in the offense.            U.S.S.G.
§ 3B1.2(b). An adjustment for a minor role applies to a defendant “who is less
culpable than most other participants, but whose role could not be described as
minimal.” § 3B1.2 cmt. n.5. Whether a defendant is a minor participant in a
drug offense is a factual determination reviewed for clear error. United States
v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). “A factual finding is not clearly
erroneous if it is plausible in light of the record read as a whole.” Id.
      Ordonez’s argument that the district court clearly erred by denying his
request for a minor role adjustment lacks merit. To the extent he argues that
he was entitled to the reduction because he was a mere drug courier, his
argument is unavailing under this court’s case law.         See United States v.
Edwards, 65 F.3d 430, 434 (5th Cir. 1995); United States v. Pofahl, 990 F.2d
1456, 1485 (5th Cir. 1993). To the extent Ordonez argues that he should have
received the disputed adjustment because he was less culpable than others
involved in the offense, his argument is unavailing. Ordonez knew that he was
carrying drugs and he expected to be paid a substantial sum of money for his
activities. Ordonez also admitted making at least three similar prior drug
trafficking trips. Furthermore, Ordonez’s commission of the instant offense was

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“indispensable” and essential to the planned distribution of the drugs. See
United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). Accordingly, the
district court did not err by denying Ordonez a minor role reduction.


                     D. Procedure: Consecutive Sentences
      Ordonez argues that the district court lacked the statutory authority to
order his federal sentence to run consecutively to his yet-to-be imposed state
court sentence. In support of his argument, Ordonez relies on United States v.
Quintana-Gomez, 521 F.3d 495, 496 (5th Cir. 2008).
      This court reviews a sentence, including its consecutive nature, for
reasonableness. United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006).
A district court’s authority to order a consecutive sentence is governed by
18 U.S.C. § 3584(a), which provides that “if a term of imprisonment is imposed
on a defendant who is already subject to an undischarged term of imprisonment,
the terms may run concurrently or consecutively.” This court has held that a
district court’s authority to impose a consecutive sentence under § 3584(a)
includes the authority to order that a federal sentence run consecutively to a
not-yet-imposed state sentence. See United States v. Brown, 920 F.2d 1212,
1216-17 (5th Cir. 1991), abrogated on other grounds by Candia, 454 F.3d at 473.
The rule announced in Brown is the law of this Circuit, which forecloses ruling
on this issue.


                        E. Substantive Reasonableness
      Having concluded that Ordonez’s sentence was free from procedural error,
we turn to the issue of substantive reasonableness, applying the abuse-of-
discretion standard. See Gall, 128 S. Ct. at 597. Ordonez was sentenced to 212
months of imprisonment, which is within the properly calculated advisory
Guidelines range of 188 to 235 months and thus is presumptively reasonable.

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United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008) (citing
United States v. Medina-Argueta, 454 F.3d 479, 481 (5th Cir. 2006)). Ordonez
argues that a sentence below the Guidelines range is permitted based on his
personal history and post-offense conduct.       However, “[t]he fact that the
appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall, 128
S. Ct. at 597. More significantly, Ordonez has pointed to no facts demonstrating
that the district court abused its discretion by refusing to grant his request for
a downward departure. Accordingly, we conclude that the sentence imposed is
substantively reasonable.


                                CONCLUSION
      For the reasons stated above, the district court’s judgment of conviction
and sentence is AFFIRMED.


AFFIRMED.




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