     Case: 12-41237         Document: 00512495421         Page: 1     Date Filed: 01/09/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                         No. 12-41237
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           January 9, 2014

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
                                                    Plaintiff-Appellee

v.

RIGOBERTO MUNOZ-VARGAS,

                                                    Defendant-Appellant


                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 1:11-CR-966-1


Before JONES, WIENER, and GRAVES, Circuit Judges.
WIENER, Circuit Judge: *
       Defendant-Appellant Rigoberto Munoz-Vargas appeals the sentence
imposed following his guilty plea convictions for possession with intent to
distribute approximately 1.5 kilograms of methamphetamine and for being an
alien in possession of a firearm.            Munoz-Vargas contends that the district
court erred when calculating his base offense level because it took into account
relevant conduct involved in dismissed charges.              We review the district court=s
fact findings on drug quantity and relevant conduct for clear error, and, finding
none, we affirm. 1


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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

       1   United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009) (relevant conduct); United
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       Because Munoz-Vargas raised objections but did not present evidence to
rebut the information in the presentence investigation report (APSR@)
concerning the relevant conduct, the district court was entitled to rely on the
PSR without further inquiry. 2 In calculating a base offense level of 38, the
district court found that Munoz-Vargas was responsible for a total in excess of
30,000 kilograms of marijuana or its equivalent. 3
       According to the PSR, the 1.49 kilograms of methamphetamine seized in
November 2011 was the equivalent of 29,800 kilograms of marijuana.                       In a
post-arrest interview, Munoz-Vargas admitted that he had transported
marijuana hidden in the tires of the load vehicles from Houston, Texas, to
Little Rock, Arkansas, and that he had traveled to Kansas to take possession
of $136,500 in drug proceeds.             Evidence established that the load vehicles
typically carried at least 45 kilograms of marijuana and that Munoz-Vargas
had traveled to Little Rock at least three times, including once in October 2011,
just one month before the methamphetamine seizure.                    When combined with
three 45-kilogram loads transported to Little Rock, the $136,500 in drug
proceedsBthe equivalent of 103 kilograms of marijuanaBis more than enough
to reach the 30,000 kilograms of marijuana necessary to justify a base offense
level of 38. 4    Therefore, even if we were to ignore the various other seizures of
drugs and drug proceeds described in the PSR, Munoz-Vargas has not shown


States v. Betancourt, 422 F3d. 240, 246 (5th Cir. 2005) (drug quantity); see also United States
v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (AThere is no clear error if the district
court=s finding is plausible in light of the record as a whole.@).

       2   See United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010).

       3   See U.S.S.G. ' 2D1.1(c)(1).

       4 See id. In drug distribution cases, we broadly define what constitutes the Asame
course of conduct@ or Acommon scheme or plan,@ components of relevant conduct under Section
1B1.3 of the Guidelines. United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009).


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that the district court clearly erred in determining that his base offense level
was 38.
      Munoz-Vargas suggests that the district court also erred in applying a
two-level increase under Section 2D1.1(b)(12) of the United States Sentencing
Guidelines because: (1) the apartment where the methamphetamine was found
was not a place of manufacturing or distribution; (2) no precursor chemicals
were present; (3) there was no evidence that the methamphetamine was
distributed to couriers from the apartment; and (4) he did not have supervisory
control or substantial effective control over the apartment.             The enhancement
applies if the defendant knowingly maintains a premises for the purpose of
distributing a controlled substance, including storage of a controlled substance
for the purpose of distribution. 5      Munoz-Vargas admitted that he paid the rent
for the apartment where the methamphetamine was found and that he used
the scales found in the apartment to weigh drugs.              He and his girlfriend were
the only adults who had access to the apartment.               His nephew admitted that
he had delivered three separate loads of drugs to Munoz-Vargas at the
apartment.       The evidence also established an alternative basis for application
of the two-level increase: Numerous coconspirators transported drugs to a
residence that Munoz-Vargas shared with his wife, from which he then
arranged to transport the drugs to other states.            Munoz-Vargas also used this
residence to store drug proceeds and arranged to transport the proceeds from
the residence to Mexico.          In light of the foregoing, Munoz-Vargas has not
shown that the application of the enhancement was clearly erroneous. 6
      Munoz-Vargas also contends that the district court erred in applying a
two-level sentencing enhancement under Section 3B1.1 of the Guidelines for

      5   See U.S.S.G. ' 2D1.1, comment (n.17).

      6   See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).


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his role as a manager or supervisor in the offense because the court based the
application on relevant conduct that should not have been considered.                          The
PSR amply supports the district court=s findings by showing that
Munoz-Vargas recruited, supervised, and paid numerous couriers to transport
marijuana and other drugs from Mexico to his apartment or his residence in
Houston and then to transport the drugs to other states.                     The district court=s
finding that he was a manager or a supervisor was thus plausible in view of
the record as a whole and supports the sentencing enhancement. 7
          Finally, Munoz-Vargas insists that the district court erred in applying a
two-level enhancement under Section 2D1.1(b)(14) of the Guidelines, which
applied because he had received an aggravating role adjustment under ' 3B1.1
and was Adirectly involved in the importation of a controlled substance.@                      The
PSR recounted several specific instances when Munoz-Vargas directed
individuals in the importation of marijuana from Mexico and, if successful, to
his residence in Houston. The district court=s finding that Munoz-Vargas was
directly involved in the importation of controlled substances is therefore
plausible in view of the record as a whole. 8
          AFFIRMED.




          7   See United States v. Cooper,   274 F.3d 230, 247 (5th Cir. 2001); Villanueva, 408 F.3d
at 203.

        See United States v. Rodriguez, 666 F.3d 944, 946 (5th Cir.), cert. denied, 132 S. Ct.
          8

2115 (2012).


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GRAVES, Circuit Judge, concurring in part and dissenting in part.
      Because I would find that the district court erred in calculating the base
offense level based on relevant conduct and in applying the manager and
importation enhancements, I would reverse on those issues.             Therefore, I
respectfully dissent in part.
      The majority finds that, because Munoz-Vargas raised objections but did
not present evidence to rebut the information in the presentence investigation
report (PSR) concerning the relevant conduct, the district court was entitled to
rely on the PSR without further inquiry. The majority further cites United
States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010).         While this is a correct
statement of the law, it skips one very important step. As this court said in
Scher, “[i]n making factual determinations at sentencing, the district court is
entitled to rely upon the information in the PSR as long as the information
bears some indicia of reliability.” Id. (citing United States v. Shipley, 963 F.2d
56, 59 (5th Cir.1992)). (Emphasis added).
      Munoz-Vargas asserts that the district court clearly erred in its
application of the relevant conduct provisions of U.S.S.G. § 1B1.3(a)(1) and (2)
to calculate his base offense level under U.S.S.G. § 2D1.1(c). Section 1B1.3
provides that the base offense level and specific offense characteristics shall be
determined on the basis of the following:
            (1) (A) all acts and omissions committed, aided, abetted,
      counseled, commanded, induced, procured, or willfully caused by
      the defendant; and
            (B) in the case of a jointly undertaken criminal activity (a
      criminal plan, scheme, endeavor, or enterprise undertaken by the
      defendant in concert with others, whether or not charged as a
      conspiracy), all reasonably foreseeable acts and omissions of others
      in furtherance of the jointly undertaken criminal activity,
            that occurred during the commission of the offense of
      conviction, in preparation for that offense, or in the course of
      attempting to avoid detection or responsibility for that offense. . . .



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      U.S.S.G. § 1B1.3(a)(1)(A), (B).
      The United States Supreme Court has held that “a jury’s verdict of
acquittal does not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157,
117 S.Ct. 633, 136 L.Ed.2d 554 (1997). See also United States v. Thomas, 690
F.3d 358, 375 (5th Cir. 2012).
      The commentary to the sentencing guidelines provides that the concepts
of “common plan or scheme” and “same course of conduct” are closely related:
             (A) Common scheme or plan. For two or more offenses to
      constitute part of a common scheme or plan, they must be
      substantially connected to each other by at least one common
      factor, such as common victims, common accomplices, common
      purpose, or similar modus operandi. For example, the conduct of
      five defendants who together defrauded a group of investors by
      computer manipulations that unlawfully transferred funds over an
      eighteen-month period would qualify as a common scheme or plan
      on the basis of any of the above listed factors; i.e., the commonality
      of victims (the same investors were defrauded on an ongoing
      basis), commonality of offenders (the conduct constituted an
      ongoing conspiracy), commonality of purpose (to defraud the group
      of investors), or similarity of modus operandi (the same or similar
      computer manipulations were used to execute the scheme).
             (B) Same course of conduct. Offenses that do not qualify as
      part of a common scheme or plan may nonetheless qualify as part
      of the same course of conduct if they are sufficiently connected or
      related to each other as to warrant the conclusion that they are
      part of a single episode, spree, or ongoing series of offenses. Factors
      that are appropriate to the determination of whether offenses are
      sufficiently connected or related to each other to be considered as
      part of the same course of conduct include the degree of similarity
      of the offenses, the regularity (repetitions) of the offenses, and the
      time interval between the offenses. When one of the above factors
      is absent, a stronger presence of at least one of the other factors is
      required. For example, where the conduct alleged to be relevant is
      relatively remote to the offense of conviction, a stronger showing
      of similarity or regularity is necessary to compensate for the
      absence of temporal proximity. The nature of the offenses may also

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                                 No. 12-41237

      be a relevant consideration (e.g., a defendant's failure to file tax
      returns in three consecutive years appropriately would be
      considered as part of the same course of conduct because such
      returns are only required at yearly intervals).

      U.S.S.G. § 1B1.3, comment 9.
      Even similar offenses involving drug distribution are not the “same
course of conduct” where the necessary factor(s) are not present. See United
States v. Wall, 180 F.3d 641, 646 (5th Cir. 1999). 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). In Rhine, this court also walks through the analysis to be used in
determining relevant conduct. Id. at 885-559. As set out previously, “for two
or more offenses to constitute part of a common scheme or plan, they must be
substantially connected to each other by at least one common factor, such as
common victims, common accomplices, common purpose, or similar modus
operandi.” U.S.S.G. § 1B1.3, comment 9(A). However, “the analysis cannot be
too broad, otherwise almost any uncharged criminal activity can be painted as
similar in at least one respect to the charged criminal conduct.” United States
v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010) (internal marks and citations
omitted).
      Further, as stated previously, the factors to be considered to determine
whether offenses are part of the same course of conduct include the degree of
similarity of the offenses, the regularity (repetitions) of the offenses, and the
time interval between the offenses. U.S.S.G. § 1B1.3, comment 9(B).
      Here, Munoz-Vargas pleaded guilty to one count of possession with
intent to distribute more than 50 grams of methamphetamine (meth) and one
count of alien in possession of a firearm.       The meth was discovered on
November 15, 2011, during a consent search of an apartment Munoz-Vargas
shared with his girlfriend. Munoz-Vargas admitted that the 1.3 kilograms of

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meth and a .40 caliber handgun found in a closet in the apartment were his.
The “related” conduct involved twelve dismissed counts of possession with
intent to distribute marijuana and cocaine during the time period of March 8,
2009, to April 13, 2011. The marijuana and the cocaine were hidden inside
non-factory compartments inside the tires of Chevrolet and/or GMC vehicles
throughout the United States and involved accomplices other than the
girlfriend.
      The district court may adopt the facts contained in a PSR without further
inquiry if the facts have an adequate basis with sufficient indicia of reliability
and the defendant does not rebut the evidence or otherwise demonstrate it is
unreliable. United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002).
Confronted with an objection to the findings in the PSR, the party seeking an
adjustment in the base offense level, the Government, must prove by a
preponderance of the evidence that the adjustment is warranted. See United
States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992); United States v. Elwood,
999 F.2d 814, 817 (5th Cir. 1993). However, “[b]ald, conclusionary statements
do not acquire the patina of reliability by mere inclusion in the PSR.” Elwood,
999 F.2d at 817-818.
      The findings in the PSR do not have an adequate basis with a sufficient
indicia of reliability. They are merely bald, conclusionary statements that
Munoz-Vargas is accountable for the marijuana equivalent of $565,950, which
is 492.50 kilograms.     The probation officer responded to Munoz-Vargas’
objections to the PSR by discussing the consistency of the modus operandi in
the various marijuana/cocaine counts, with no comparison to the meth count.
The probation officer then makes the conclusionary statement that, “[b]ased
on the foregoing evidence, the drug and money seizures linked to Munoz-
Vargas and the instant offense were sufficiently connected to each other by at
least two common factors, that is, similar accomplices and modus operandi.
Accordingly, the offenses constituted part of a common scheme or plan.”
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(Emphasis original). Notwithstanding that the findings in the PSR do not
have an adequate basis with a sufficient indicia of reliability, from a practical
standpoint, it is impossible to rebut evidence that does not exist. The PSR
does not establish any accomplices in the meth count similar to the
marijuana/cocaine counts. The PSR also does not establish any similarity in
modus operandi between the meth count and the marijuana/cocaine counts.
The PSR establishes similarity in accomplices and modus operandi between
the various marijuana and cocaine counts, and then merely makes the bald,
conclusionary statement that those similarities also apply to the meth count
without any supporting evidence whatsoever. There is no requirement that
Munoz-Vargas somehow rebut evidence that was not even included in the PSR.
More importantly, once Munoz-Vargas objected, the Government had the
burden of proving by a preponderance of the evidence that the adjustment was
warranted. As indicated by the Government’s response to the objection, it
failed to do this and merely offered another bald, conclusionary statement.
Because the district court erred in calculating the base offense level, I would
reverse on this issue.
      Further, as I would find that the marijuana/cocaine counts were not
relevant conduct, the two-level sentencing enhancement under Section 3B1.1
of the Guidelines for being a manager is inapplicable.             Without the
aggravating role adjustment under Section 3B1.1, there can be no two-level
enhancement under Section 2D1.1(b)(14) of the Guidelines. In both the PSR
and at the hearing, the Government offered evidence of the importation of
marijuana and cocaine. There was no evidence offered or allegation made
regarding the importation of meth. Therefore, the district court’s statement
that “there is evidence that [Munoz-Vargas] was directly involved in the
importation of the methamphetamine” is not plausible in view of the record as
a whole. Thus, I would also reverse on these issues.
Accordingly, I respectfully dissent in part.
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