     Case: 10-10975     Document: 00511565765         Page: 1     Date Filed: 08/09/2011




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

                                                                            FILED
                                                                           August 9, 2011
                                     No. 10-10975
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

OCARIO RUIZ,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CR-73-3


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Ocario Ruiz pleaded guilty to one count of conspiracy to possess, with
intent to distribute, cocaine. He was sentenced, inter alia, to 360 months’
imprisonment.       Ruiz contends, under Guideline § 1B1.3(a)(1)(B) (defining
“relevant conduct” for jointly undertaken criminal activities): his sentence
should have been based solely on cocaine, which was within the scope of the
conspiracy and reasonably foreseeable to him; and, accordingly, he should not



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10975    Document: 00511565765       Page: 2    Date Filed: 08/09/2011

                                   No. 10-10975

be held responsible for the methamphetamine that also was involved because it
was not reasonably foreseeable to him.
      Although, post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the advisory Guidelines
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 50-51 (2007).        In that respect, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). The court’s determination
of the type and quantity of drugs for which defendant is responsible is a factual
finding and, therefore, is reviewed only for clear error. E.g., United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
      In determining defendant’s base-offense level, courts may consider drug
quantities not specified in the count of conviction if they are part of defendant’s
“relevant conduct”, as defined by Guideline § 1B1.3. E.g., United States v. Wall,
180 F.3d 641, 644-45 (5th Cir. 1999). That Guideline provides: defendant’s
sentence shall be determined by “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant”, U.S.S.G. § 1B1.3(a)(1)(A), as well as “all reasonably foreseeable acts
and omissions of others in furtherance of [a] jointly undertaken criminal
activity”, U.S.S.G. § 1B1.3(a)(1)(B). That Guideline’s commentary provides:
“defendant is accountable for all quantities of contraband with which he was
directly involved”. U.S.S.G. § 1B1.3 cmt. n.2. That commentary also clarifies
that the conduct referenced in Guideline § 1B1.3(a)(1)(B), regarding the
limitation of reasonable foreseeability, “applies only in respect to the conduct . . .
of others” and is inapplicable to those instances in which defendant is directly
involved. Id.; see also United States v. Carreon, 11 F.3d 1225, 1237 (5th Cir.
1994).

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                                    No. 10-10975

      Reasonable foreseeability vel non does not apply in this instance because
Ruiz personally participated in the conduct for which he was found accountable
at sentencing. Ruiz was present at a stash house—which was operated by the
organization from which he routinely purchased drugs—with the intention of
taking   control    of   a   drug   shipment   containing   both   cocaine    and
methamphetamine. He attempted to use his vehicle to remove the narcotics
from the stash house and to prevent the law-enforcement agents from
discovering the organization’s source of supply. Further, when agents executed
a search warrant at the stash house, Ruiz was observed placing into his vehicle
packages found to contain both cocaine and methamphetamine.
      The record therefore supports that Ruiz personally participated in the
conduct for which he was sentenced. Accordingly, without regard to reasonable
foreseeability, Ruiz was accountable for the full quantity of all drugs within the
packages. See U.S.S.G. § 1B1.3(a)(1)(A). Although Ruiz maintains he believed
the packages contained only cocaine, his knowledge of their specific contents is
immaterial. In other words, Ruiz was responsible for the narcotics involved in
the conduct for which he personally participated, even if he did not know the
type drugs contained in the packages. See, e.g., United States v. Valencia-
Gonzales, 172 F.3d 344, 345-46 (5th Cir. 1999).
      AFFIRMED.




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