     Case: 09-50733     Document: 00511179790          Page: 1    Date Filed: 07/20/2010




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

                                                FILED
                                                                            July 20, 2010
                                     No. 09-50733
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAVIER MONTOYA-RUBIO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:09-CR-728-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Javier Montoya-Rubio appeals the sentences imposed following his guilty
plea convictions on one count of importation of marijuana and one count of
possession with intent to distribute marijuana. He challenges the district court’s
finding of the amount of marijuana attributable to him.
        Montoya-Rubio attempted to enter the United States from Mexico in a
vehicle containing 13.32 kilograms of marijuana hidden in a compartment under
the backseat.      After authorities discovered this marijuana, Montoya-Rubio

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50733

admitted that he agreed, in exchange for $1,000, to transport the marijuana
across the border and to deliver it to a residence in Socorro, Texas. He further
admitted that, on two occasions during the preceding three weeks, he had
successfully used the same vehicle to transport an unknown quantity of
marijuana from Mexico to the same residence in Socorro and was paid $1,000 on
each occasion.
      The district court found that Montoya-Rubio’s initial two deliveries each
involved a quantity of marijuana that was equivalent to the 13.32 kilograms he
attempted to import on February 18, 2009. Accordingly, it found that he was
responsible for 39.96 kilograms of marijuana, a quantity that resulted in the
assessment of a base offense level of 18. See U.S.S.G. § 2D1.1(a)(3), (c)(11) (Nov.
2008). Montoya-Rubio contends that the district court erred in estimating the
amount of marijuana involved in his two prior deliveries.
      In determining a defendant’s base offense level under § 2D1.1, a district
court may consider as part of the defendant’s relevant conduct any 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 cmt. n.12.        The district court’s
determination of the quantity of drugs attributable to a defendant for purposes
of § 2D1.1 is a factual finding that is reviewed for clear error. United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). “A factual finding is not clearly
erroneous as long as it is plausible in light of the record as a whole.”           Id.
(internal quotation marks and citation omitted).
      A district court may estimate the amount of drugs attributable to a
defendant; its finding need not be limited to the actual quantities of drugs
seized.   United States v. Medina, 161 F.3d 867, 876 (5th Cir. 1998); see
Betancourt, 422 F.3d at 246. A district court may extrapolate drug estimates
“from any information that has a sufficient indicia of reliability to support its
probably accuracy.” United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006)

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                                No. 09-50733

(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. Betancourt, 422 F.3d at 247.
      Montoya-Rubio admitted that he used the same vehicle on three occasions
during a three-week period to transport marijuana, the arranged payment for
each occasion was $1,000, and he was to deliver the marijuana to the same
residence on each occasion. The fact that each of Montoya-Rubio’s trips involved
the same fee for transporting marijuana to the same destination using the same
hidden compartment of a vehicle suggests that he performed the same service
in each trip. In light of the similar circumstances of the three instances, the
district court did not clearly err in estimating that Montoya-Rubio’s initial two
deliveries each involved a quantity of marijuana that was equivalent to the
quantity seized in his third trip. See Betancourt, 422 F.3d at 246; Medina, 161
F.3d at 876-77; United States v. Sapien, 265 F. App’x 312, 313 (5th Cir. 2008)
(unpublished).
      AFFIRMED.




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