     Case: 17-40746      Document: 00514450944         Page: 1    Date Filed: 04/30/2018




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

                                                                               FILED
                                    No. 17-40746                           April 30, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EUSEBIO CASTILLO, also known as Flaco,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:16-CR-706-12


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Eusebio Castillo appeals the sentence for his conviction under the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§ 1962(d). He argues that the district court clearly erred in determining his
Sentencing Guidelines insofar as it found that his “relevant conduct,” see
U.S.S.G. § 1B1.3, included drug amounts possessed or distributed by other co-
conspirators.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40746    Document: 00514450944     Page: 2     Date Filed: 04/30/2018


                                 No. 17-40746

      We review a district court’s interpretation and application of the
Guidelines de novo and its factual findings for clear error. United States v.
Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). In the case of a jointly
undertaken criminal endeavor, relevant conduct extends to the acts of others,
so long as those acts were “(i) within the scope of the jointly undertaken
criminal activity, (ii) in furtherance of that criminal activity, and (iii)
reasonably   foreseeable   in   connection    with   that    criminal    activity.”
§ 1B1.3(a)(1)(B). Under the circumstances here, where Castillo (1) was directly
part of a drug transaction, (2) became a prospective member of the Texas
Mexican Mafia (TMM), which generally included training and resulted in
access to more information about the organization’s criminal activities, and (3)
had “taken care of other jobs” for the TMM, a reasonable inference arises that
he agreed, implicitly or explicitly, to be involved in the entirety of the TMM
drug conspiracy as of early April 2014. See United States v. Cooper, 274 F.3d
230, 241–43 (5th Cir. 2001) (holding that the district court did not clearly err
in sentencing a defendant based on the drug amount attributable to the entire
time period of the conspiracy, even though he was not a “regular” seller in the
conspiracy and was incarcerated during part of it); United States v. Gadison, 8
F.3d 186, 197 (5th Cir. 1993) (concluding that the defendant’s transportation
of cocaine on two occasions supported a fair inference that the defendant
agreed to the broader drug distribution conspiracy); see also United States v.
Fierro, 38 F.3d 761, 773 (5th Cir. 1994) (the district court, when sentencing a
defendant for a drug offense, may consider the quantity of drugs actually seized
or charged as well as amounts that were part of a common plan of distribution,
were reasonably foreseeable, and were part of the illegal activity the defendant
joined).




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    Case: 17-40746      Document: 00514450944   Page: 3   Date Filed: 04/30/2018


                                 No. 17-40746

      Because the record plausibly supports that Castillo could be held
accountable for all drug quantities involved in the conspiracy from that time
forward, Castillo has shown no clear error. See Torres-Hernandez, 843 F.3d at
207; United States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015) (“There
is no clear error if the sentencing court’s finding is plausible in light of the
record as a whole.”).
      AFFIRMED.




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