United States v. Rivero-Formoso

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 28, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-11022
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS DEJESUS RIVERO-FORMOSO, also known as David Gonzalez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CR-10-ALL
--------------------
Before JOLLY, DENNIS, CLEMENT, Circuit Judges.
PER CURIAM:*
Luis DeJesus Rivero-Formoso (Rivero) appeals the 108-month
sentence imposed following his guilty plea conviction for
possession with intent to distribute more than 1000 kilograms of
marijuana. Rivero asserts that the district court violated his
Sixth Amendment rights by sentencing him based on more than 3000
kilograms of marijuana; he contends that he pleaded guilty to
involvement with only over 1000 kilograms of marijuana. In
addition, Rivero asserts that the district court exceeded its

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authority by ordering his sentence to be served consecutively to
any as-yet-undetermined state court sentence.
By rendering the Sentencing Guidelines advisory only, Booker
eliminated the Sixth Amendment concerns that prohibited a
sentencing court from finding all facts relevant to sentencing.
See United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). Thus, a sentencing court has the
authority to find, by a preponderance of the evidence, all facts
relevant to sentencing. See id. at 519.
After reviewing the district court’s findings of fact for
clear error and its application of those facts to the Guidelines
de novo, we conclude that the district court did not violate
Rivero’s Sixth Amendment rights by sentencing him based on its
factual finding that Rivero-Formoso was responsible for over 3000
kilograms of marijuana. See United States v. Betancourt, 422
F.3d 240, 246 (5th Cir. 2005); United States v. Villegas, 404
F.3d 355, 359 (5th Cir. 2005).
Rivero also contends that (1) the district court erred in
assigning his base offense level because a conspiracy was not
charged and no relevant conduct was attributed to him that
warranted a sentence enhancement, and (2) the evidence was not
sufficient to establish that 3000 kilograms or more of marijuana
were seized because the Government did not separately weigh the
packaging materials on the 455 packages of marijuana.

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Rivero-Formoso’s base offense level was set pursuant to
U.S.S.G. § 2D1.1(a)(3) & (c)(3) based on the quantity of
marijuana seized from him at the time of his arrest and not a
quantity derived from a conspiracy or from relevant conduct. For
purposes of sentencing, drug quantities may be estimated as long
as the quantities are extrapolated from information bearing
sufficient indicia of reliability. See United States v. Valdez,
453 F.3d 252, 267 (5th Cir), cert. denied, 127 S. Ct. 456 (2006).
Rivero did not demonstrate by rebuttal evidence that the
information 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 presented during the
sentencing hearing, bore sufficient indicia of reliability and
were not clearly erroneous.
Rivero asserts that the district court exceeded its
authority by ordering his sentence to run consecutively to any
as-yet-undetermined state sentence. Because Rivero raises this
contention for the first time, review is for plain error only.
Mares, 402 F.3d at 520. Rivero must show an “(1) error, (2) that
is plain, and (3) that affects substantial rights.” Id.
(internal quotation marks and citation omitted). If these
criteria are met, we may exercise discretion and notice the
forfeited error but only if “(4) the error seriously affects the
fairness, integrity, or public reputation of judicial

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proceedings.” Id. (internal quotation marks and citation
omitted).
The district court has the authority to order a federal
sentence to run consecutively to an undetermined state sentence.
18 U.S.C. § 3584(a); United States v. Brown, 920 F.2d 1212, 1216-
17 (5th Cir. 1991), abrogated on other grounds by United States
v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006)(determining that
post-Booker review of challenge to consecutive sentences is for
reasonableness, not for abuse of discretion). The district court
specifically explained that the consecutive sentence adequately
addressed the sentencing objectives of punishment and deterrence
in addition to the factors set out in 18 U.S.C. § 3553(a).
Rivero has not shown error, much less plain error. See Mares,
402 F.3d at 520.
Accordingly, the Government’s motion for summary affirmance
is GRANTED, the motions to dismiss the appeal and for an
extension of time are DENIED, and the judgment of the district
court is AFFIRMED.

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