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

                                                 FILED
                                                                        September 10, 2009
                                     No. 08-51193
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JORGE LUIS SAENZ-BUSTILLOS, also known as Chirros,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:08-CR-666-2


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jorge Luis Saenz-Bustillos (Saenz) pleaded guilty to one count of
conspiring to possess 100 kilograms or more of a mixture and substance
containing a detectable amount of marijuana (Count One) and to one count of
using a communication facility to facilitate the commission of a felony offense
under the Controlled Substance Act (Count Two). The district court, relying on
information in the Presentence Report (PSR), determined at sentencing that
Saenz was responsible for 839.16 kilograms of marijuana, a greater amount than

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-51193

Saenz admitted to when pleading guilty. Saenz was sentenced to a 73-month
term of imprisonment on Count One and to a statutory maximum 48-month
term of imprisonment on Count Two.
      To the extent that Saenz argues that it was improper under United States
v. Booker, 523 U.S. 220 (2005) for the district court to consider uncharged
conduct in determining his base offense level, his argument is without merit.
Under the sentencing regime in place after Booker, a “sentencing judge is
entitled to find by a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range and all facts relevant to the
determination of a non-Guidelines sentence.” United States v. Johnson, 445 F.3d
793, 798 (5th Cir. 2006) (quotation marks and citation omitted). In determining
a defendant’s base offense level, the district court may consider drug quantities
not specified in the count of conviction if they are part of the defendant's
relevant conduct as defined in U.S.S.G § 1B1.3. United States v. Vital, 68 F.3d
114, 118 (5th Cir. 1995).
      Saenz argues that the information in the PSR was not sufficient reliable
and that his rights under the Confrontation Clause were violated by the use of
information regarding drug quantity provided by a co-conspirator. He also
contends that the district court clearly erred in finding that he was responsible
for 939.16 kilograms of marijuana.
      Here, the information in the PSR regarding previous loads of marijuana
received by Saenz was provided by an individual who worked with Saenz in
obtaining the contraband.      The previous marijuana loads were properly
considered as relevant conduct by the district court as they were part of the
same course of conduct as the offense of conviction. See § 1B1.3; United States
v. Ocana, 204 F.3d 585, 589-90 (5th Cir. 2000). Because Saenz failed to come
forward with rebuttal evidence, the district court was entitled to rely on the
information contained in the PSR. See United States v. Betancourt, 422 F.3d
240, 246 (5th Cir. 2005). The district court’s determination that Saenz was

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responsible for 839.16 kilograms of marijuana was plausible in light of the record
as a whole and thus was not clearly erroneous. See id. Saenz’s contention that
his rights under the Confrontation Clause were violated at sentencing is without
merit. See United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007).
      AFFIRMED.




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