Summary Calendar UNITED STATES OF AMERICA v. Alejandro Ramos Prodencio

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10119
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALEJANDRO RAMOS PRODENCIO
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-18-4
Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alejandro Ramos Prodencio appeals his post-Booker convictions and 248-
month sentence (188 months on count one followed by 60 months consecutive on
count four) for conspiracy to possess with intent to distribute five kilograms or
more of cocaine (count one) and possession of a firearm in furtherance of a drug
trafficking crime (count four; Prodencio was not charged in either count two or
count three). Prodencio asserts that the Government did not present sufficient
United States Court of Appeals
Fifth Circuit
F I L E D
October 3, 2007
Charles R. Fulbruge III
Clerk

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evidence to convict him on either count. In addition, he contends that the
district court violated his Sixth Amendment rights by sentencing him based on
more than 50 kilograms of cocaine.
After considering the evidence in the light most favorable to the verdict,
we conclude that the evidence was sufficient to establish beyond a reasonable
doubt that, as the jury found, Prodencio conspired to possess with intent to
distribute “five or more kilograms” of cocaine and that he possessed a firearm in
furtherance of this drug trafficking crime. See United States v. Smith, 481 F.3d
259, 263-64 (5th Cir.), cert. denied, 127 S.Ct. 2288 (2007); United States v.
Turner, 319 F.3d 716-, 721-24 (5th Cir. 2003); United States v. Pietri, 683 F.2d
877, 879-80 (5th Cir. 1982). The evidence established that Prodencio was
involved in numerous drug transactions and actually supplied the drugs in the
instant case. Prodencio carried the firearm to the scene of the drug deal for the
purpose of protection during the drug transaction. Testimony from co-
defendants and Drug Enforcement agents was sufficient to establish Prodencio’s
guilt beyond a reasonable doubt. See United States v. Westbrook, 119 F.3d 1176,
1190 (5th Cir. 1997).
By rendering the Sentencing Guidelines advisory only, the Supreme Court
in United States v. Booker, 543 U.S. 220 (2005), eliminated the Sixth
Amendment concerns that prohibited a sentencing court from finding all facts
relevant to sentencing within the statutory punishment range (240 months
count one, 60 months consecutive count four). See United States v. Mares, 402
F.3d 511, 518-19 (5th Cir. 2005). Drug quantities may be estimated as long as
the quantities are determined from information bearing sufficient indicia of
reliability; Prodencio bore the burden of demonstrating that the information in
his presentence report concerning his drug quantity was inaccurate or
unreliable. See United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002). The
district court’s findings, based on the presentence report and the testimony

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presented during trial, bore sufficient indicia of reliability and were not clearly
erroneous. See United States v. Betancourt, 422 F.3d 240, 246-47 (5th Cir. 2005).
The district court did not violate Prodencio’s Sixth Amendment rights by
sentencing him based on its finding that Prodencio was responsible for over 50
kilograms of cocaine. See Mares, 402 F.3d at 519.
Accordingly, the judgment of the district court is AFFIRMED.

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