     Case: 11-50973     Document: 00511908690         Page: 1     Date Filed: 07/03/2012




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

                                                                            FILED
                                                                            July 3, 2012
                                     No. 11-50973
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ERNESTO GOMEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:11-CR-38-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Ernesto Gomez appeals from his sentence following his guilty plea
conviction of possession with intent to distribute a quantity of cocaine within
1000 feet of a playground. Gomez argues that the district court erred by finding
that his receipt and distribution of 24 ounces (680.4 grams) of cocaine prior to his
offense of conviction constituted relevant conduct for sentencing purposes.
        In determining a defendant’s base offense level under U.S.S.G. § 2D1.1, a
district court may consider as part of the defendant’s relevant conduct any

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50973    Document: 00511908690      Page: 2   Date Filed: 07/03/2012

                                  No. 11-50973

quantities of drugs that were part of the same course of conduct or common
scheme or plan as the offense of conviction. United States v. Wall, 180 F.3d 641,
644 (5th Cir. 1999); see U.S.S.G. § 1B1.3(a)(2); § 2D1.1 comment. (n.12). In drug
distribution cases, this court has “broadly defined what constitutes the same
course of conduct or common scheme or plan.” United States v. Rhine, 583 F.3d
878, 885 (5th Cir. 2009) (internal quotation marks and citation omitted). The
finding of the amount of drugs attributable to a defendant is made under the
preponderance of the evidence standard. United States v. Betancourt, 422 F.3d
240, 247 (5th Cir. 2005). A district court’s determination of the amount of drugs
for which a defendant should be held responsible is a factual finding reviewed
for clear error. United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998).
      Contrary to Gomez’s contention, the testimony of Sergeant Mitch Russell
of the Midland, Texas Police Department and the Drug Enforcement
Administration, which was credited by the district court and the veracity of
which Gomez does not challenge on appeal, was sufficient to establish that
Gomez’s prior receipt and distribution of the 24 ounces of cocaine at issue was
part of the same course of conduct or common scheme or plan as the offense of
conviction. See Rhine, 583 F.3d at 885-91; United States v. Bethley, 973 F.2d
396, 401 (5th Cir. 1992).
      Moreover, Gomez ignores that the district court’s relevant conduct finding
was also supported by the presentence report, which the district court was
permitted to rely on at sentencing and which Gomez bore the burden of
demonstrating was inaccurate. See United States v. Ollison, 555 F.3d 152, 164
(5th Cir. 2009). The only rebuttal evidence offered by Gomez in support of his
objection was his own testimony, which the district court did find was not
credible; Gomez does not challenge that credibility determination here. In short,
even if Gomez preserved his current arguments by raising them sufficiently in
the district court, he fails to show clear error. See Posada-Rios, 158 F.3d at 878.
      AFFIRMED.

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