Summary Calendar UNITED STATES OF AMERICA v. Julio Cesar Sapien

* 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should not be published and is not precedent except under the limited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. 07-50314
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JULIO CESAR SAPIEN
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1803-1
Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Julio Cesar Sapien appeals the sentences imposed following his guilty-plea
convictions for conspiracy to import cocaine, importation of cocaine, conspiracy
with intent to distribute cocaine, and possession with intent to distribute cocaine
in violation of 21 U.S.C. §§ 841, 846, 952, 960, 963. He argues that the district
court clearly erred in calculating the drug quantities for which he was held
responsible and clearly erred in denying him a two-level minor role adjustment
pursuant to U.S.S.G. § 3B1.2.
United States Court of Appeals
Fifth Circuit
F I L E D
February 13, 2008
Charles R. Fulbruge III
Clerk

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The district court should consider a defendant’s relevant conduct when
determining his base offense level under the Guidelines. U.S.S.G. § 1B1.3(a)(1).
When an amount of drugs seized “does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled substance.” U.S.S.G.
§ 2D1.1 cmt. n.12. The district court’s determination of the quantity of drugs for
sentencing purposes is a factual finding that we review for clear error. United
States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A factual finding is not
clearly erroneous so long as it is plausible in light of the record as a whole.
United States v. Morris, 46 F.3d 410, 419 (5th Cir. 1995).
Sapien was arrested when he entered the United States from Mexico after
United States Bureau of Immigration and Customs Enforcement (ICE) agents
discovered 49.53 kilograms of cocaine in a hidden compartment of his vehicle.
Sapien subsequently advised ICE agents that he had driven the same vehicle
across the border on two previous occasions, that his mother-in-law hired him
each of the three times he crossed the border, that she paid him the same
amount of money each time, and that each time he delivered the vehicle to the
same department store. The presentence report recommended that Sapien be
held accountable for the 49.53 kilograms seized from the vehicle and an
additional 99.06 kilograms (49.53 x 2) for the two previous trips, for a total of
148.59 kilograms of cocaine. Sapien objected, but the district court overruled his
objection and found that Sapien should be held accountable for the full amount.
A district court may estimate drug amounts for sentencing purposes
provided the estimate is based on reliable evidence. Betancourt, 422 F.3d at 246.
“The defendant bears the burden of showing that the information in the PSR
relied on by the district court is materially untrue.” United States v. Alford, 142
F.3d 825, 832 (5th Cir. 1998) (quoting United States v. Valencia, 44 F.3d 269, 274
(5th Cir. 1995)). “In [United States v. ]Medina, this Court inferred the amount
of drugs for which the defendant was responsible based on extrapolation from
the number of border crossings and the amount of cocaine seized during one such

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crossing.” Betancourt, 422 F.3d at 247. Sapien argues that he did not know
whether there were drugs involved in the first two trips and that the first two
trips may have been dry runs, but that explanation is doubtful. Sapien was
hired by the same person to make each run; was paid for each run, and in the
same amount each time; used the same vehicle for each run; and took the vehicle
to the same location each time. Moreover, the relationship between Sapien and
the person who hired him, his mother-law, and that it was Sapien’s vehicle
undercut the inference that the first two runs were tests of his trustworthiness.
The fact that Sapien’s wife was with him only on the last trip does not
demonstrate that the district court clearly erred in its extrapolation. We cannot
conclude that the district court clearly erred in calculating the drug quantity.
See Betancourt, 422 F.3d at 249; United States v. Medina, 161 F.3d 867, 876-77
(5th Cir. 1998); United States v. Perez, 183 Fed. App’x 477, 481 (5th Cir. 2006).
Nor did the district court clearly err in rejecting Sapien’s argument that
he was entitled to a reduction for a minor role in the offense. See United States
v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005); U.S.S.G. § 3B1.2. Sapien
introduced himself into the drug smuggling activities, and he was an integral
part of those activities. “It is not enough that a defendant ‘does less than other
participants; in order to qualify as a minor participant, a defendant must have
been peripheral to the advancement of the illicit activity.’” Villanueva, 408 F.3d
at 203-04 (quoting United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir.
2001)). Moreover, Sapien pleaded guilty to, among other charges, possession
with intent to distribute cocaine and the importation of cocaine. A reduction
under § 3B1.2 is not required when the defendant’s sentence is based upon his
own conduct “even though the defendant’s activity in a larger conspiracy may
have been minor or minimal.” United States v. Atanda, 60 F.3d 196, 199 (5th
Cir. 1995).
AFFIRMED.

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