United States v. Rodriguez
152 F. App'x 406
November 2, 2005 · Docket 05-50182
Headnotes
Generated summaries- Headnote 1
The court noted the record contained no evidence contradicting that the by‑product (“bones”) was a mixture, and therefore applied the guideline definition to count it toward Rodriguez’s drug quantity.
- Headnote 2
The appellate panel found the district court’s determination regarding the “bones” plausible despite no testimony, and applied the clear‑error/plausibility standard from United States v. Parker.
- Headnote 3
The court noted there was no evidence that Rodriguez’s by‑product (‘bones’) was not a mixture, and applied the guideline’s definition to treat it as a detectable mixture for the offense‑level enhancement.
- Headnote 4
The Fifth Circuit held that the district court’s determination that the “bones” were a detectable mixture was plausible and therefore not clearly erroneous, applying the Parker clear‑error/plausibility standard.
- Headnote 5
The court noted there was no evidence the by‑product was not a mixture or substance as defined by the Guidelines, and therefore it must be counted toward the defendant’s offense‑level drug quantity.
- Headnote 6
The district court’s determination that the “bones” were a detectable mixture was held plausible and therefore not clearly erroneous, relying on the clear‑error and plausibility standard from United States v. Parker.
Opinion
Caesar Rodriguez pleaded guilty to a superseding information indictment charging him with attempt to manufacture methamphetamine. Rodriguez was sentenced to a 68-month term of imprisonment and to a three-year period of supervised release and was ordered to pay a $1,000 fine. Rodriguez gave timely notice of his appeal.
Rodriguez contends that the district court erred in attributing to him at sentencing a quantity of material that was byproduct and “only contained some quantity of the drug that may have not been useable or distributable.” He contends that the byproduct or “bones” should not have been considered in determining his offense level.
There is no evidence in the record showing that the byproduct was not a “mixture or substance” as defined by the guidelines. See U.S.S.G. § 2Dl.l(c), comment. (n.A). As there is no testimony on the subject whatsoever, the district court’s determination that the “bones” should be included as a mixture or substance containing a detectable amount of methamphetamine is plausible in light of the record as a whole, and is therefore not clearly erroneous. See United, States v. Parker, 133 F.3d 322, 330 (5th Cir.1998). The judgment is
AFFIRMED.
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.