                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit                       July 18, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                  No. 05-51147




                         UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                     VERSUS


                           PEDRO ESTRADA PEREZ,

                                                      Defendant-Appellant.




              Appeal from the United States District Court
               For the Western District of Texas, El Paso
                              05-CR-852-ALL



Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

      Pedro    Estrada    Perez     (Estrada)    challenges   his    sentence

following his plea of guilty to charges of importation of marijuana

and possession with intent to distribute marijuana.                 The only

significant issue in the appeal is whether the district court

clearly erred in concluding that the evidence supports the finding

that Estrada was accountable for 142.86 kilograms of marijuana for


  *
   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opinion should not be published and is not precedent except under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.
sentencing purposes.   We conclude that the evidence was sufficient

for the court to make this finding and affirm the sentence.

                                 I.

                                 A.

     In March 2005, Estrada attempted to enter the United States

from Mexico at the Bridge of the Americas Port of Entry in El Paso,

Texas.   He was driving a 1989 Ford Bronco with Mexican plates.   At

primary inspection, Estrada said that the vehicle belonged to him.

The Customs and Border Protection officer noted that the vehicle

was clean, did not appear to have ever been used, and that the back

seat was abnormally hard.      The vehicle was sent to secondary

inspection, where Estrada again said that he owned the vehicle and

that he was going shopping at Wal-Mart.

     A dog alerted to the rear seat, and subsequent inspection

revealed 82 bundles of marijuana.     The marijuana was located under

the back seat and rear quarter panels and weighed 105 pounds or

47.64 kilograms.

     After being given his Miranda warnings, Estrada said that he

had been hired a couple of weeks before by two people he did not

know to transport drugs in the vehicle into the United States.    He

said that this was the third time that he had crossed the border in

the same vehicle with narcotics.        He said that each time he

crossed, he left the vehicle in the parking lot of the Star Western

Wear Clothing Store in downtown El Paso.       He was instructed to

leave the keys in the glove compartment and return to Mexico.     He

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was paid $700 each time he transported drugs across the border in

the vehicle.

     Based on the statements made by Estrada at the time of his

arrest, the probation officer concluded that it was reasonable to

infer that he was involved in the crossing of two previous loads

which were equal to the load of marijuana seized based on (1) the

payment   of   the   same     fee   received     for    each   of   the   previous

crossings, (2) the proximity of each crossing, (3) the same vehicle

was utilized for each of the previous crossings and (4) the same

individual hired the Defendant for all three crossings.                          The

probation officer recommended holding Estrada accountable for the

47.62 kilograms of marijuana seized and two additional loads of the

same amount, for a total of 142.86 kilograms of marijuana.                   This

gave him a base offense level of 26.                    The probation officer

recommended that Estrada’s offense level be reduced by two points

for providing complete information to the government, and three

additional     points   for    acceptance        of    responsibility,     but    no

reduction was recommended for a mitigating role in the offense.

     Estrada    objected      to    the   base   offense    level   calculation,

arguing that it was pure speculation as to the amount of marijuana

transported on the two previous trips and that it was unknown

whether narcotics were concealed within the vehicle during prior

crossings.

     Estrada also objected to the probation officer’s failure to

recommend a two-level reduction for minor role pursuant to U.S.S.G

                                          3
§   3B1.2(b).    The    district   court    denied   both   objections    and

sentenced Estrada at the bottom of the guideline range, 37 months.

Estrada filed a timely appeal.

      Estrada was sentenced after United States v. Booker, 543 U.S.

220 (2005).     Post-Booker, this court continues to review the

district court’s interpretation and application of the Guidelines

de novo and its factual findings with respect to sentencing for

clear error.    United States v. Villanueva, 408 F.3d 193, 203 & n.9

(5th Cir.), cert. denied, 126 S. Ct. 268 (2005); United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005).          A finding of fact is

not clearly erroneous “[a]s long as it is plausible in light of the

record read as a whole.” United States v. Morris, 46 F.3d 410, 419

(5th Cir. 1995).

                                      II.

                                      A.

      Estrada argues first that the quantity of drugs used to

determine his base offense level was calculated on speculative

extrapolation    and   not   proved   by    a   preponderance   of   reliable

evidence.   He contends that the probation officer’s drug-quantity

assertions lacked an evidentiary basis and reliability for the 142-

kilogram figure.       He contends that no testimony established an

evidentiary basis for the size or fact of other loads.               He argues

that his admission that he had been paid twice before to drive the

truck across the border was not sufficient to establish those facts

and that the probation officer improperly used that admission to

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speculate on the quantity of marijuana.

     The facts listed by the probation officer to justify the

attribution of 142.86 kilograms of marijuana to Estrada (the fact

that Estrada received the same fee for each crossing; the crossings

were at the same place, with the same vehicle, with the same

individual hiring him), were clearly sufficient to support the

conclusion that Estrada’s two prior trips were part of the same

course of conduct under United States sentencing guideline § 1B1.3,

the relevant conduct guideline.       See United States v. Shonubi, 998

F.2d 84, 89 (2d Cir. 1993).

     However, that does not end the inquiry.             In making factual

findings, the district judge may consider any information that has

“sufficient    indicia   of     reliability   to    support     its   probable

accuracy.” U.S.S.G. § 6A1.3(a), p.s.; United States v. Betancourt,

422 F.3d 240, 247 (5th Cir. 2005).          The district court must make

its factual findings at sentencing by a preponderance of evidence

which is both relevant and sufficiently reliable.             Betancourt, 422

F.3d at 247.

     In   determining    drug    quantity   for    sentencing    purposes,   a

district court may approximate the amount so long as the estimates

are reasonable and based on reliable evidence.           Id. at 246.

           Types and quantities of drugs not specified in
           the count of conviction may be considered in
           determining the offense level. . . . Where
           there is no drug seizure or the amount seized
           does not reflect the scale of the offense, the
           court shall approximate the quantity of the


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           controlled   substance.     In  making   this
           determination, the court may consider, for
           example, the price generally obtained for the
           controlled substance, financial or other
           records, similar transactions in controlled
           substances by the defendant, and the size or
           capability of any laboratory involved.

U.S.S.G. § 2D1.1, cmt., n.12.

     The   district   court   in   this    case   used    an   extrapolation

methodology to determine drug quantity. Based on the facts recited

in the PSR the court inferred that Estrada probably transported the

same quantity of drugs on each of the three occasions he crossed

the border with drugs in this vehicle.

     Estrada relies on United States v. Shonubi, in which the court

concluded that the extrapolation used by the district court was

unreliable.   998 F.2d at 89.      Shonubi was arrested at JFK airport

after a visit to Nigeria and was found to be carrying 427.4 grams

of heroin.    Id. at 86.      At his trial, the government produced

evidence that he had made between five and eight other trips to

Nigeria.   The district court found that he had made eight trips,

that he had imported heroin on each occasion, and multiplied the

number of trips by 427.4 grams.          Id. at 87.   Shonubi argued that

this was error because the government had failed to prove how much

heroin he had smuggled during each of his trips.            Id. at 88.

     The Second Circuit agreed with the district court that the

prior trips were part of the same course of conduct as the offense

of conviction, and that it might be inferred that he had imported

heroin during these prior trips.         Id. at 89.      However, the court

                                     6
noted that the government must still prove drug quantity by a

preponderance of the evidence and that there was no proof that

Shonubi had imported 427.4 grams of heroin on each of his seven

other trips.    Id.

     In United States v. Cabrera, 288 F.3d 163, 170-73 (5th Cir.

2002), the district court used the extrapolation method to estimate

the number of immigrants smuggled by the defendant.              The agents

were aware of the number of immigrants smuggled on three of the 15

trips, and they assumed that at least two immigrants were smuggled

on each occasion.      This assumption was based on the fact that the

smuggling scheme was designed to use children to aid in the

crossing,   taking    advantage   of   the   Border   Patrol’s   policy   of

leniency toward families with young children.           Id. at 172.   This

court concluded that “there is sufficient reliable evidence that

the multiplier used by the district court in the instant case is

reasonably representative of the number of immigrants smuggled on

each trip.”    Id.    We specifically distinguished Shonubi.        Id.

     Although these cases are somewhat instructive, a determination

of whether the evidence is sufficient obviously depends upon the

facts of each case.     Our review of this record leads us to conclude

that the evidence is sufficient to support the district court’s

finding. First, the same supplier hired Estrada for all three drug

runs and this supplier paid Estrada $700 to transport each load.

The payment of the same fee suggests that Estrada performed the

same service.        Second, the same vehicle was used and the cargo

                                       7
area where the marijuana was found was packed so tight that the

rear seat was hard to the touch.    There is little reason to believe

that the compartment established for smuggling the marijuana would

be only partially filled.   The defendant argues that it is just as

reasonable to assume that the supplier sent Estrada across the

border without drugs on a dry run to test the courier and let the

border inspectors get accustomed to seeing the defendant. The fact

that the supplier put the Bronco in Estrada’s name indicates a

firmly established relationship between the two persons that had

advanced past any trial period.         Also, the argument that the

earlier two crossings could have been dry runs is contradicted by

Estrada’s admission that he transported drugs on the two previous

trips.   In addition, as the government argued, it is doubtful that

a supplier would pay a courier to make dry runs.

     We conclude therefore that the district court did not clearly

err in finding that the evidence was sufficient to establish the

142.86 kilogram figure.




                                   B.

     Estrada argues that the district court erred by denying him a

two-level reduction for minor participant.    The determination of a

defendant's role in an offense is factual in nature, subject to

review for clear error.   United States v. Palomo, 998 F.2d 253, 257

(5th Cir.), cert. denied,114 S.Ct. 358, 126 L.Ed.2d 322 (1993).   He

                                   8
contends that he was a courier whose only role was to drive the

Bronco from the Mexican side to the United States and that he was

paid a fixed, relatively low fee.    This argument is without merit.

In U.S. v. Buenrostro, we held that the district court had not

committed clear error in refusing to award a § 3B1.2 reduction in

a case involving a one-time courier of marijuana who performed the

task after meeting previously unknown individuals in a bar.     See

868 F.2d 135, 137-38 (5th Cir. 1989).

     Estrada has failed to sustain his burden of demonstrating that

he was entitled to a mitigating-role adjustment. See United States

v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994).           The record

indicates that Estrada played an integral role in transporting 105

pounds of marijuana (47.62 kilograms) hidden in a vehicle and that

he pleaded guilty to substantive counts of possessing the marijuana

with an intent to distribute and to importing marijuana.        The

persons hiring him trusted him enough to register the vehicle in

his name.   The district court did not clearly err in finding that

Estrada was not entitled to a downward adjustment for a mitigating

role in the offense.

     For the reasons states above we AFFIRM Estrada’s sentence.

     AFFIRMED.




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