     Case: 12-40589        Document: 00512314735          Page: 1     Date Filed: 07/19/2013




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

                                                                              FILED
                                                                             July 19, 2013

                                        No. 12-40589                         Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee
v.

DAVID VILLARREAL,

                                                    Defendant - Appellant



                    Appeals from the United States District Court
                         for the Southern District of Texas


Before OWEN and HAYNES, Circuit Judges, and LEMELLE, District Judge.*
PER CURIAM:
      Defendant-Appellant David Villarreal appeals his conviction and sentence
for conspiring to and possessing with the intent to distribute more than five
kilograms of cocaine. We AFFIRM.
      Border Patrol agents inspected Villarreal’s car at a border checkpoint
whereupon they discovered ten bundles of a white powdery substance that they
believed to be methamphetamine.                Laboratory analysis revealed that the
packages contained cocaine and weighed 8.4 kilograms. The bundles were
separated into two groups: one group had a net weight of 2.5 kilograms and a



      *
          District Judge of the Eastern District of Louisiana, sitting by designation.
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                                  No. 12-40589

cocaine purity of .41%; the other had a net weight of 5.9 kilograms and a cocaine
purity of 3.2%.
      Villarreal was charged with conspiring to possess with intent to distribute
more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846, and for possessing with intent to distribute more than five
kilograms of cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1),
(b)(1)(A). He proceeded to a bench trial on stipulated facts and was convicted
and sentenced to the mandatory minimum term of 120 months. The court held
Villarreal accountable only for the 5.9 kilograms of 3.2% purity, terming the
other 2.5 kilograms as “junk.”
      Although styled as separate challenges to his conviction and sentence,
Villarreal’s arguments boil down to one point: that the district court erred in
using 5.9 kilograms because that mixture was substantially diluted, albeit less
so than the 2.5 kilograms. He argues that if the court had considered only the
weight attributable to the actual cocaine, he could not have been found guilty of
crimes requiring more than five kilograms. Additionally, his sentencing analysis
would have been different.        Thus, Villarreal challenges the legal—not
factual—basis for considering the entire 5.9-kilogram amount as “cocaine,” under
the unrebutted evidence presented.
      “This [c]ourt reviews a district court’s finding of guilt after a bench trial
to determine whether it is supported by any substantial evidence.” United
States v. Shelton, 325 F.3d 553, 557 (5th Cir. 2003) (quotation marks omitted).
“The district court’s legal conclusions are reviewed de novo.” Id. Similarly, we
review a district court’s interpretation or application of the Guidelines de novo.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Our disposition of both the conviction and sentencing issues is controlled
by Chapman v. United States, 500 U.S. 453 (1991). In that case, the Supreme
Court construed the statute’s reference to a “‘mixture or substance containing

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                                       No. 12-40589

a detectable amount,’” see 21 U.S.C. § 841(b), to mean that “[s]o long as [the
substance] contains a detectable amount, the entire mixture or substance is to
be weighed when calculating the sentence.” Chapman, 500 U.S. at 459. The
Court distinguished other sections of the statute that prescribe mandatory
minimums “based either on the weight of a mixture or substance containing a
detectable amount of the drug, or on lower weights of [the pure drug].” Id.
(citing § 841(b)(1)(A)(iv)). In view of that distinction, the Court reasoned that
“Congress knew how to indicate that the weight of the pure drug was to be used
to determine the sentence, and did not make that distinction with respect to [the
drug at issue there].” Id. Although Chapman dealt with LSD, the Court
specifically mentioned cocaine as a type of drug that is typically “cut” with an
inert substance, the weight of which Congress intended to be included for
sentencing purposes. Id. at 459-60. (“In some cases, the concentration of the
drug in the mixture is very low. But, if the carrier is a ‘mixture or substance
containing a detectable amount of the drug,’ then under the language of the
statue the weight of the mixture or substance, and not the weight of the pure
drug, is controlling.” (citations omitted)).
       The chemist in this case stated that she had tested samples that were
similarly low in purity to the 3.2%-pure, 5.9-kilogram sample and that the
sample “appeared to be in a state that could be ingested by a drug consumer.”
Her testimony supported the conclusion that the substance that was mixed with
the cocaine is a common adulterant, i.e., the type of “dilutant, cutting agent, or
carrier medium” that Congress intended to include in the weight of this drug.
See id. at 460. Because Villarreal possessed a “‘mixture or substance containing
a detectable amount of [cocaine],’ . . . the weight of the mixture . . . and not the
weight of the pure [cocaine], is controlling.” See id.1

       1
         Because this mixture was usable in its diluted form, it is different from cases where
we concluded that the entire weight of the substance could not be used. See, e.g., United States

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       The sentencing analysis is similarly clear: the Guidelines specifically
provide that “the weight of a controlled substance . . . refers to the entire weight
of any mixture or substance containing a detectable amount of the controlled
substance.” U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2D1.1(c) n.(A)
(2011). The commentary defines “mixture or substance” as having “the same
meaning as in 21 U.S.C. § 841, except as expressly provided. Mixture or
substance does not include materials that must be separated from the controlled
substance before the controlled substance can be used.” U.S.S.G. § 2D1.1 cmt.
n.1. Accordingly, the district court likewise did not err in using 5.9 kilograms
to calculate Villarreal’s sentence.
       AFFIRMED.




v. Palacios-Molina, 7 F.3d 49, 52 (5th Cir. 1993) (refusing to include the weight of wine in
which cocaine was transported for sentencing purposes because it was the “functional
equivalent of packaging material”).

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