   Case: 11-50366       Document: 00511866079         Page: 1     Date Filed: 05/24/2012




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

                                                                            FILED
                                                                           May 24, 2012
                                     No. 11-50366
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

JAVIER GARCIA-ROMAN,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 2:09-CR-777-3




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       A jury convicted Javier Garcia-Roman of conspiracy to possess with intent
to distribute 100 grams or more of heroin and less than 500 grams of cocaine in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50366    Document: 00511866079       Page: 2   Date Filed: 05/24/2012

                                    No. 11-50366

violation of 21 U.S.C. §§ 846 and 841(a)(1) and conspiracy to import 100 grams
or more of heroin and less than 500 grams of cocaine in violation of 21 U.S.C.
§§ 963, 952(a), and 960(a)(1). The district court sentenced him to 168 months of
imprisonment on each count, to run concurrently.
      Garcia-Roman contends that the evidence was insufficient to support the
verdict. Because he moved for a judgment of acquittal pursuant to Federal Rule
of Criminal Procedure 29, we review his claim de novo, “applying the same stan-
dards as the district court in reviewing the sufficiency of the evidence.” United
States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999). We consider “whether,
viewing the evidence in the light most favorable to the government, a rational
trier of fact could have found the essential elements of the offense beyond a rea-
sonable doubt.” United States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998).
      “To establish a conspiracy under either 21 U.S.C. § 846 or § 963, the Gov-
ernment must prove beyond a reasonable doubt (1) that an agreement existed
between two or more persons to violate the applicable narcotics law (i.e., a con-
spiracy existed), (2) that each alleged conspirator knew of the conspiracy and
intended to join it and (3) that each alleged conspirator participated (i.e., joined)
voluntarily in the conspiracy.” United States v. Medina, 161 F.3d 867, 872 (5th
Cir. 1998). Because knowledge of drug type and quantity is not an element of
an offense under § 841(a)(1), United States v. Gamez-Gonzalez, 319 F.3d 695,
699-700 (5th Cir. 2003), or of an offense under § 952(a) and § 960(a), United
States v. Restrepo-Granda, 575 F.2d 524, 527-28 (5th Cir. 1978); see United
States v. Valencia-Gonzales, 172 F.3d 344, 345-46 (5th Cir. 1999), the govern-
ment was not required to prove that Garcia-Roman knew the type or quantity
of drugs that his conspiracies involved, see United States v. Patino-Prado, 533
F.3d 304, 309-10 (5th Cir. 2008).
      The trial evidence showed that Garcia-Roman enlisted his brother, Faver,
to help him find someone to bring narcotics into the United States. Faver
recruited Britny, with whom Faver made a trip to Piedras Negras, Mexico, in

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                                  No. 11-50366

May 2009 as Garcia-Roman directed their movements over the phone. They met
a woman who gave Britny white flip-flops that contained drugs, and Faver and
Britny returned to the United States and delivered the flip-flops as instructed
by Garcia-Roman. Garcia-Roman paid Britny $500 and subsequently offered
Britny $1,000 to make another trip with her friend Lauren.
      Britny and Lauren traveled to Piedras Negras in June 2009 as Garcia-
Roman directed their movements over the phone. Britny received another pair
of white flip-flops from the same woman in Piedras Negras, but they were
arrested at the border as they tried to return to the United States. Garcia-
Roman gave Faver $200 in cash for expenses for the May trip and initially gave
Britny the same amount for expenses for the trip in June. The flip-flops Britny
was wearing when she was arrested contained heroin and cocaine.
      Thus, viewing the evidence in the light most favorable to the government,
a rational trier of fact could have found beyond a reasonable doubt that Garcia-
Roman conspired to import and to possess with intent to distribute controlled
substances. In addition, the jury’s findings that the conspiracies involved at
least 100 grams of heroin and an unspecified amount of cocaine were supported
by a chemist’s testimony that the flip-flops Britny attempted to smuggle in June
contained 953.4 grams of heroin and 65.1 grams of cocaine.
      Garcia-Roman also avers that the district court erred in doubling the
amount of drugs seized in June in order to calculate the total amount of drugs
that his crimes involved. The district court’s determination of the quantity of
drugs attributable to a defendant for purposes of U.S.S.G. § 2D1.1 is a factual
finding made under the preponderance-of-the-evidence standard. United States
v. Betancourt, 422 F.3d 240, 247 (5th Cir. 2005). We give “considerable defer-
ence” to such factual findings, reversing them “only if they are clearly errone-
ous.” Id. at 246 (internal quotation marks and citations omitted). “There is no
clear error if the district court’s finding is plausible in light of the record as a
whole.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)

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(internal quotation marks and citation omitted).
      A court may consider estimates in determining drug quantity for sentenc-
ing purposes, provided that the estimates are reasonable and based on reliable
evidence. See, e.g., Betancourt, 422 F.3d at 246; see also § 2D1.1, comment.
(n.12). When approximating the amount of controlled substances, a court may
consider “similar transactions in controlled substances by the defendant,” as well
as other factors. § 2D1.1, comment. (n.12). In Betancourt, the district court mul-
tiplied the amount of cocaine the defendant distributed to one individual by
twelve, which was the number of the individuals to whom the defendant had sold
cocaine, and we affirmed. Betancourt, 422 F.3d at 246-48; see also United States
v. Cabrera, 288 F.3d 163, 166-73 (5th Cir. 2002) (affirming a similar calculation
involving the number of aliens trafficked by the defendant).
      Garcia-Roman’s conspiracies involved two drug-smuggling trips during
which he provided the smugglers $200 in cash for expenses and directed their
movements over the phone and in which the smugglers met the same woman in
Piedras Negras who gave the same smuggler (Britny) white flip-flops to wear
across the border. In addition, the presentence report (“PSR”) stated that Garcia
paid Faver and Britny the same amount for the first trip that he initially offered
to pay Britny for the second trip with Lauren. The PSR explained that the
smugglers used the Eagle Pass border crossing during both trips. In light of
these similarities, the finding that the conspiracies involved twice the amount
of drugs seized during the second trip is plausible in light of the record as a
whole. See Cisneros-Gutierrez, 517 F.3d at 764; Betancourt, 422 F.3d at 246-48.
      AFFIRMED.




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