     Case: 11-41094     Document: 00511896993         Page: 1     Date Filed: 06/22/2012




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

                                                                            FILED
                                                                           June 22, 2012
                                     No. 11-41094
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUDY RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:10-CR-1128-3


Before DENNIS, CLEMENT, and OWEN, Circuit Judges
PER CURIAM:*
        Rudy Rodriguez pleaded guilty pursuant to a written plea agreement to
conspiracy to commit murder in aid of a racketeering activity (Count One of
seven-count second superseding indictment), and conspiracy to possess with
intent to distribute more than 500 grams of methamphetamine (Count Five of
second superseding indictment), in violation of 21 U.S.C.§§ 841(a)(1), (b)(1)(A),
846. The district court imposed concurrent sentences of 120 months for Count



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-41094

One and 324 months for Count Five, for a total of 324 months of imprisonment.


      All of the issues raised by Rodriguez on appeal pertain solely to the
324-month, within-guidelines sentence that was imposed for the drug offense.
Rodriguez argues that the district court erred in determining the quantity of
methamphetamine attributable to him, that the district court erred in applying
a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(3), based on the
finding in the presentence report (PSR) that the object of the offense was the
distribution of a controlled substance in a prison, and that the district court
erred in applying a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(4),
for importing methamphetamine, because he also received a downward
adjustment for his mitigating role in the offense under U.S.S.G. § 3B1.2.
      We review the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).            A district court’s
calculation of the quantity of drugs involved in an offense is a factual finding
that is entitled to considerable deference and will be reversed only if clearly
erroneous. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
A factual finding is not clearly erroneous if it is plausible in light of the record
as a whole. Id.
      The base offense level for violating § 841(a)(1) is determined by the
quantity of drugs involved. See U.S.S.G. § 2D1.1. The district court may
consider drug quantities not specified in the count of conviction if they are part
of the defendant’s relevant conduct. § 2D1.1, comment. (n.12); United States v.
Burke, 431 F.3d 883, 888 (5th Cir. 2005).        In this case, the district court
determined    that   Rodriguez     was   responsible      for   5.21   kilograms     of
methamphetamine.
      In making that determination, the district court relied on credible
evidence: the PSR and wire-tap conversations between Rodriguez and another

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                                  No. 11-41094

gang member regarding the purchase and distribution of methamphetamine.
See Betancourt, 422 F.3d at 246; United States v. Alford, 142 F.3d 825, 831-32
(5th Cir.1998). Rodriguez failed to demonstrate that the information relied upon
by the district court was materially untrue. See Bentancourt, 422 F.3d at 246;
Alford, 142 F.3d at 832. Even if the evidence could be construed in a way that
is be more favorable to Rodriguez, we will not reverse the district court’s decision
simply because we could have weighed the evidence differently. See United
States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). The district court’s determination
of the drug quantity attributable to Rodriguez is plausible in light of the record
as a whole. See Betancourt, 422 F.3d at 246.
      As for Rodriguez’s argument that the evidence was insufficient to support
an enhancement under § 2D1.1(b)(3), the district court was permitted to draw
reasonable inferences from the facts presented, and Rodriguez failed to show
that the inferences were clearly erroneous. See United States v. Caldwell, 448
F.3d 287, 290 (5th Cir. 2006).
      We agree, however, that the district court erred in imposing an
enhancement pursuant to § 2D1.1(b)(4), given that Rodriguez also received a
downward adjustment under § 3B1.2. Rodriguez acknowledges that because he
did not object to the application of the enhancement under § 2D1.1(b)(4) on this
ground in the district court, review is for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
      Section 2D1.1(b)(4) provides, in relevant part, that a defendant’s base
offense level is increased by two levels, “If (A) the offense involved the
importation of . . . methamphetamine . . . , and (B) the defendant is not subject
to an adjustment under § 3B1.2 (Mitigating Role).” Because Rodriguez received
an adjustment under § 3B1.2, the application of the enhancement under
§ 2D1.1(b)(4) was — as both parties assert — clear error.
      Without the error, Rodriguez’s guidelines sentencing range is 262 to 327
months of imprisonment. Although his 324-month sentence falls within that

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range, it is 62 months higher than the minimum sentence available under the
correct guidelines sentencing range. Given that the district court accepted the
Government’s recommendation that Rodriguez be sentenced at the bottom of the
guidelines range, there is “a reasonable probability that, but for the district
court’s error, [Rodriguez] would have received a lower sentence.” United States
v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). The district court’s application of the
§ 2D1.1(b)(4) enhancement is clear error that affects Rodriguez’s substantial
rights and seriously affects the fairness and integrity of judicial proceedings. See
Puckett v. United States, 566 U.S. 129, 135, 142 (2009).
      Accordingly, we VACATE the 324-month sentence imposed for Count Five
and REMAND for resentencing in accordance with this opinion. In all other
respects, the judgment of the district court is AFFIRMED.




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