     Case: 18-11329      Document: 00515164281         Page: 1    Date Filed: 10/18/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-11329
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 18, 2019
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellee,

v.

FRANCISCO PENA, JR.,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-102-1


Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
       Francisco Pena, Jr., pleaded guilty to possession with intent to distribute
methamphetamine. The district court sentenced him to 188 months in prison.
Pena appeals the sentence.
       Pena contends that the district court committed various errors in finding
the quantity of drugs attributable to him for purposes of sentencing. He argues
that the drug-quantity finding was, in part, derived from alleged activities that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11329     Document: 00515164281      Page: 2   Date Filed: 10/18/2019


                                  No. 18-11329

do not qualify as relevant conduct under U.S.S.G. § 1B1.3. Further, he argues
that the finding relied on unreliable and inaccurate estimates as to the scope
of his distribution, originated from the uncorroborated claims of a cooperating
defendant, and resulted from a flawed methodology that inflated the amount
of methamphetamine attributable to him.
      The record reflects that Pena’s claims were raised in his objections to the
presentence report (PSR) or addressed by either the Government’s response to
his objections or the second addendum to the PSR. At sentencing, he opted to
forgo any argument as to the drug-quantity finding that was implicated by his
objections or the responses thereto. He asserted that he did not wish to pursue
the objections, stated that he did not contest either the Government’s response
or the second addendum to the PSR, and admitted that the response and the
second addendum properly set forth the reasons that the quantity finding was
proper. Thus, his appellate challenges to the drug-quantity finding are waived
and unreviewable. See United States v. Olano, 507 U.S. 725, 733 (1993); United
States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir. 1995). To the extent that Pena
seeks to challenge the propriety and sufficiency of the district court’s findings
supporting the drug-quantity calculation, that claim likewise was waived when
he abandoned any challenge to the adequacy of the facts in the PSR to establish
the quantity of drugs attributable to him. See Olano, 507 U.S. at 733; Musquiz,
45 F.3d at 931-32.
      Pena also argues that the district court erred because it did not require
the drug-quantity finding to be proven by clear and convincing evidence. He
asserts that a higher burden of proof was required because the drug-quantity
finding had a disproportionate effect on his sentence. Because he did not raise
this claim in the district court, we review for plain error only. See United States
v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994).



                                        2
    Case: 18-11329    Document: 00515164281     Page: 3   Date Filed: 10/18/2019


                                 No. 18-11329

      While we have acknowledged the possibility that a heightened standard
of proof may be required in cases involving a dramatic increase in sentencing
based on judicial factfinding, we have never actually required such a burden
for factual findings at sentencing. See United States v. Simpson, 741 F.3d 539,
558 (5th Cir. 2014); United States v. Mergerson, 4 F.3d 337, 344 (5th Cir.1993).
Instead, after United States v. Booker, 543 U.S. 220 (2005), we have held that
all facts relevant to sentencing—that do not affect the statutory range—may
be found by a preponderance of the evidence. See United States v. Scroggins,
485 F.3d 824, 834 (5th Cir. 2007); United States v. Mares, 402 F.3d 511, 519
(5th Cir. 2005). The district court’s use of the preponderance-of-the-evidence
standard thus was not clear or obvious error. See United States v. Fuchs, 467
F.3d 889, 901 (5th Cir. 2006); United States v. Mares, 402 F.3d 511, 519 (5th
Cir. 2005).
      Pena argues that his sentence violates the Sixth Amendment. He asserts
that his sentence was substantially enhanced as a result of judge-found facts
concerning relevant conduct and that, apart from the consideration of those
facts, his sentence was unreasonable. This argument is foreclosed. See United
States v. Hernandez, 633 F.3d 370, 374 (5th Cir. 2011).
      AFFIRMED.




                                       3
