     Case: 14-41114      Document: 00513655289         Page: 1    Date Filed: 08/29/2016




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

                                    No. 14-41114                                  FILED
                                  Summary Calendar                          August 29, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANCISCO JAVIER MAYA, also known as Tampico, also known as Daniel
Ibarra,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-317-2


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Francisco Javier Maya was convicted of conspiring to possess with the
intent to distribute more than 100 kilograms of marihuana in violation of 21
U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) (Count 1), and aiding and abetting the
substantive offense of possession with intent to distribute approximately
454.54 kilograms of marihuana in violation of § 841(a)(1) and (b)(1)(B) and 18



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-41114

U.S.C. § 2 (Count 2). Following this conviction, in a separate case, Maya
pleaded guilty to conspiring to possess with the intent to distribute 1,000
kilograms or more of a substance containing a detectible amount of marihuana
in violation of §§ 846, 841(a)(1) and (b)(1)(A) (Count 1). At a consolidated
sentencing, the district court overruled Maya’s objections regarding relevant
conduct and held him accountable for 4,156.456 kilograms of marihuana based
on the application of the grouping provisions of Chapter 3, Part D of the
Guidelines, and the relevant conduct provisions under U.S.S.G. § 1B1.3. The
court determined Maya’s base offense level to be 34 under U.S.S.G.
§ 2D1.1(c)(3) (2013), and ultimately sentenced him to a total of 189 months of
imprisonment.
      On appeal, Maya argues that the district court erred in applying the
relevant conduct provision of § 1B1.3(a) in determining his base offense level
under § 2D1.1(c). Specifically, he challenges the district court’s decision to
attribute to him as relevant conduct: (1) 664.07 kilograms of marihuana seized
in Chicago, Illinois, on December 20, 2009; (2) 506.09 kilograms of marihuana
seized in Pasadena, Texas, in August 2011; and (3) 31.752 kilograms he
supplied in 2012. Notably, Maya concedes that the district court reasonably
could have attributed to him as relevant conduct 2,954.44 kilograms of
marihuana. At the time he was sentenced, “[a]t least 3,000 KG but less than
10,000 KG of Marihuana” was all that was required to warrant the base offense
level of 34−the base offense level assessed in this case. See § 2D1.1(c)(3) (2013).
      This court reviews the district court’s application of the Guidelines de
novo and its factual findings for clear error. United States v. Hinojosa, 749
F.3d 407, 411 (5th Cir. 2014). The district court’s determination of what
constitutes relevant conduct is a factual finding reviewed for clear error.
United States v. Buck, 324 F.3d 786, 796 (5th Cir. 2003). A factual finding is



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not clearly erroneous if it is plausible in light of the record read as a whole.
Rhine, 583 F.3d at 885. With respect to Maya’s offenses of conviction, the
district court was required to consider unadjudicated conduct that was “part of
the same course of conduct or common scheme or plan as the count of
conviction” as relevant conduct. § 1B1.3(a)(2); Buck, 324 F.3d at 796; United
States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009).
      The district court did not specify through which avenue (common scheme
or plan or same course of conduct) it reached its relevant-conduct finding. The
Government contends that based on the evidence, the district court could have
plausibly found that Maya’s involvement in two different marihuana
transportation cells were substantially connected by a similar modus operandi
and a common purpose, and thus constituted part of the same common scheme
or plan as the offense of conviction. See § 1B1.3, comment n. 9(A) (2013) (re-
designated as § 1B1.3, comment n. 5(B) (2015)). We agree.
      Maya, in concert with his co-conspirators, recruited truck drivers,
tractors, trailers, and associates for multiple drug trafficking associations with
the common purpose of transporting bulk shipments of marihuana.              The
district court attributed to Maya as relevant conduct 664.07 kilograms of
marihuana seized in Chicago, Illinois, on December 20, 2009. Maya admitted
that this marihuana shipment originated in Edinburg, Texas, and that he
coordinated   the    transportation   with   three    unnamed    co-conspirators.
Additionally, in June and July 2011, Maya, who coordinated the transportation
of marihuana for a “Mr. Salinas,” secured an undercover agent from the Drug
Enforcement Administration (DEA) to provide the tractor-trailer and driver,
and 506.09 kilograms of marihuana was transported and ultimately seized in
Pasadena, Texas, in August 2011.




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      The record shows that Maya’s conduct with respect to these drug
amounts was part of his ongoing drug trafficking operation to coordinate the
transportation of large shipments of marihuana, operating with a similar
modus operandi and the same common purpose as his offenses of conviction.
His conduct in connection with these amounts is therefore part of a common
scheme or plan. See § 1B1.3. Consequently, we do not find that the district
court clearly erred in including these drug amounts as relevant conduct for the
calculation of the applicable base offense level. See § 1B1.3, comment n. 9(A)
(2013) (re-designated as § 1B1.3, comment n. 5(B) (2015)).
      Maya also challenges the inclusion as relevant conduct of 31.752
kilograms of marihuana he supplied in 2012. Even if the court were to accept
Maya’s argument with respect to this load, his base offense level would not
change given that the other amounts challenged were properly included as
relevant conduct. See § 2D1.1(c)(3) (2013). Thus, any error with respect to the
district court’s drug quantity calculation would be harmless. See United States
v. Solis, 299 F.3d 420, 462 (5th Cir. 2002).
      Accordingly, the judgment of the district court is AFFIRMED.




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