     Case: 10-10525     Document: 00511527129         Page: 1     Date Filed: 06/30/2011




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

                                                                            FILED
                                                                           June 30, 2011
                                     No. 10-10525
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAZIEL MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-147-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Raziel Martinez pleaded guilty to aiding and abetting the distribution of
a controlled substance and was sentenced to 71 months of imprisonment and
three years of supervised release.
        Martinez argues on appeal that the district court committed clear error
when it held him accountable at sentencing both for four ounces of heroin
observed by a confidential source lying on a table at a residence at which
Martinez was selling heroin on May 22, 2007, and for five ounces of heroin

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10525   Document: 00511527129      Page: 2   Date Filed: 06/30/2011

                                  No. 10-10525

contained in five separate one-ounce packets wrapped in black tape that were
recovered from Martinez two days later on May 24, 2007. He contends that the
four ounces of heroin observed on May 22, 2007, was the same heroin that was
included in the five ounces of heroin recovered from Martinez on May 24, 2007,
and that the Government did not meet its burden of proving that such a
guidelines adjustment based on drug quantity was applicable. Additionally, the
Government moves to strike its assertion in its brief that Martinez had a second
source of supply in Fort Worth, Texas, and any arguments relying on that
assertion.
      The district court was entitled to consider such evidence, and aside from
his own speculation, Martinez has not offered in rebuttal any evidence
demonstrating that the two quantities of heroin were identical. See United
States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006); United States v. Betancourt,
422 F.3d 240, 246-47 (5th Cir. 2005). Accordingly, Martinez has not shown that
the district court’s drug quantity determination was not plausible in light of the
record as a whole, and thus he has not shown that the district court committed
clear error in calculating the drug quantity for which he was held accountable
at sentencing. See Betancourt, 422 F.3d at 246.
      AFFIRMED; GOVERNMENT’S MOTION TO STRIKE GRANTED.




                                        2
