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

                                                                               FILED
                                                                            September 15, 2008

                                         No. 07-40328                   Charles R. Fulbruge III
                                                                                Clerk

UNITED STATES OF AMERICA

                                                    Plaintiff - Appellee
v.

JESUS ALVAREZ-SALINAS

                                                    Defendant - Appellant



                      Appeal from the United States District Court
                           for the Southern District of Texas
                                 USDC No. 5:06-CR-785


Before GARZA and DENNIS, Circuit Judges.*
PER CURIAM:**
       Jesus Alvarez-Salinas (“Alvarez”) appeals the district court’s mandatory
minimum sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(B). Alvarez
contends that the district court erred in attributing greater than 100 kilograms
of marijuana to him for sentencing purposes. For the following reasons, we
affirm.



       *
           This case is being decided by a quorum. See 28 U.S.C. § 46(d).
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40328

                                        I
      In May 2006, United States Border Patrol agents observed several
unknown individuals emerging from the banks of the Rio Grande River carrying
large bundles. The Border Patrol agents confronted the individuals, who then
ran back towards the river with their bundles. Alvarez was seen carrying one
of the bundles and attempted to escape with the other individuals when the
Border Patrol Agents arrived. Agents caught Alvarez; but the other individuals
eluded capture and swam back to Mexico. At the scene, agents recovered five
bundles which contained marijuana weighing, in the aggregate, 132.5 kilograms.
      Based on the above facts, the government charged Alvarez with a two-
count indictment. Pursuant to a plea agreement, Alvarez pleaded guilty to count
two of the indictment and count one was dismissed. Count two provided that
Alvarez “did knowingly and intentionally possess with intent to distribute a
controlled substance.   This violation involved a quantity in excess of 100
kilograms of marihuana . . . [i]n violation of Title 21, United States Code,
Sections 841(a)(1) and 841(b)(1)(B) and Title 18, United States Code, Section 2.”
In pleading guilty to this count, Alvarez admitted to being a principal, as well
as aiding and abetting the possession of 100 kilograms or more of marijuana.
The facts in the preceding paragraph make up the factual basis for Alvarez’s
guilty plea. Alvarez stipulated to these facts and did not challenge the factual
basis for his plea.
      Pursuant to 21 U.S.C. § 851 and 28 U.S.C. § 994(h), the Government filed
an information of prior conviction to notify Alvarez that he was subject to a
sentencing enhancement under § 841(b) based upon a prior felony conviction for
possession with intent to distribute marijuana. Alvarez stipulated to his prior
conviction.
      Alvarez’s plea agreement indicated that his pleading guilty to a violation
of § 841(a) involving greater than 100 kilograms of marijuana, coupled with his


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prior conviction, triggered a statutory mandatory minimum sentence of 10 years.
See 21 U.S.C. § 841(b)(1)(B).1 Section 841(b)(1)(B) also mandated an eight-year
term of supervised release.
        At rearraignment, Alvarez again admitted his prior drug conviction. The
district court twice indicated to Alvarez that his stipulation to the prior
conviction would enhance his minimum sentence from five years to ten years
under § 841(b)(1)(B). Also, Alvarez agreed with the district court’s recitation of
the facts that made up the basis for his plea, including the fact that the quantity
of marijuana involved was “roughly 132 [kilograms].”                         Alvarez raised no
objections at rearraignment.
       The pre-sentence investigation report (“PSR”) assessed a based offense
level of 26 pursuant to United States Sentencing Guidelines Manual (“USSG”)
§ 2D1.1(c)(7) (2005), attributing 132.5 kilograms of marijuana to Alvarez. Since
there were no adjustments, Alvarez’s total offense level was 26. Coupled with
Alvarez’s criminal history score of II, the Guidelines’ range of imprisonment was
70-87 months. However, because the applicable mandatory minimums were
greater than the Guidelines range, the mandatory minimums became the
applicable Guidelines sentence.              See USSG §§ 5G1.1(b) & 5D1.2(c). Alvarez
raised no objection to the PSR.
       At the sentencing hearing, after again admitting to his prior drug
conviction, Alvarez stated, “I thought that I was going to be judged for the
amount I was carrying, but I wasn’t thinking that I was going to be judged for


       1
         21 U.S.C. § 841(a) makes it illegal to possess with the intent to distribute a controlled
substance. Section 841(b)(1)(B) provides:
       In the case of a violation of subsection (a) of this section involving . . .
               (vii) 100 kilograms or more of a mixture or substance containing a detectable amount
               of marijuana . . .
       such person shall be sentenced to a term of imprisonment which may not be less than 5 years
       and not more than 40 years . . . [but] [i]f any person commits such a violation after a prior
       conviction for a felony drug offense has become final, such person shall be sentenced to a term
       of imprisonment which may not be less than 10 years and not more than life imprisonment.

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the whole load.” The district court stated that Alvarez should not be surprised
at this point because the count to which he pleaded alleged that his offense
involved more than 100 kilograms, the plea agreement stated that Alvarez was
facing a 10-year mandatory minimum, and the court had gone over the factual
basis for his plea and advised him of the statutory penalties at rearraignment.
The district court then explained, “that if two or three people get together and
they’re working together and they’re crossing over and they each have a bag
. . . they’re all liable for the whole. Because after all, it is one idea; the idea is to
get these bundles across the river, working together.” The district court adopted
the PSR and attributed 132.5 kilograms of marijuana to Alvarez for sentencing
purposes. The district court sentenced Alvarez to the mandatory minimums
under § 841(b)(1)(B) of 120 months’ imprisonment and eight years’ supervised
release. Aside from the above statement, Alvarez raised no objections at
sentencing.
                                                  II
       On appeal, Alvarez challenges the drug quantity attributed to him for
sentencing purposes.2 He contends that the district court erred by attributing
132.5 kilograms or the “whole load” to him, and that for purposes of determining
the appropriate statutory penalty under § 841(b), a defendant may only be
sentenced based on the drugs personally possessed by him, in this case, the
single bundle that Alvarez carried across the border. To support his argument,
Alvarez cites authorities instructing district courts to determine statutory drug
quantities based solely on the defendant’s offense conduct, as opposed to
utilizing Guidelines concepts such as relevant conduct. See United States v.



       2
          Alvarez also challenges the constitutional rule announced in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), that the fact of a prior conviction used to enhance a sentence need not be
submitted to a jury or found beyond a reasonable doubt. We have recognized that such challenges are
foreclosed by Almendarez-Torres. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.
2007), petition for cert filed (Aug. 28, 2007) (No. 07-6202).

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Mergerson, 4 F.3d 337, 345-46 (5th Cir. 1993); United States v. Santos, 195 F.3d
549, 551 (10th Cir. 1999), abrogated on other grounds by United States v. Jones,
235 F.3d 1231, 1237 (10th Cir. 2000).
      The above authorities are not inconsistent with Alvarez’s sentence. The
drugs attributed to Alvarez were not based on relevant conduct, but on the
offense to which Alvarez pleaded guilty: namely a violation of § 841(a) whereby
he possessed or aided and abetted possession of greater than 100 kilograms of
marijuana.    The factual basis to which he stipulated showed that 132.5
kilograms were involved in his offense, that Alvarez was part of a group of
individuals that crossed the Rio Grande together with similar bundles of
marijuana, and that they all attempted to flee together. Based on the count to
which Alvarez pleaded guilty, the facts to which he stipulated, and his
admissions at rearraignment, Alvarez sealed his fate with respect to the
statutory penalties under § 841(b). The district court did not have discretion at
sentencing to find new facts in order to undo Alvarez’s admissions or avoid
application of the mandatory minimum. In sum, the offense to which Alvarez
pleaded guilty and his stipulation regarding his prior drug conviction mandated
application of the 10-year minimum under § 841(b)(1)(B).
      For the foregoing reasons, we AFFIRM the district court’s sentence.




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