United States v. Valdez

United States Court of Appeals
for the Fifth Circuit

No. 19-40793

United States of America,

Plaintiff—Appellee,

versus

Roman Valdez,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CR-1346-1

Before Barksdale, Elrod, and Ho, Circuit Judges.
Per Curiam:*
Solely at issue is whether a defendant convicted for possession of, with
intent to distribute, a controlled substance, in violation of 21 U.S.C. § 841, is
entitled, for sentencing purposes, to have any drugs intended for personal use
excluded from the drug-quantity calculation. Because Valdez did not present

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 15, 2020

Lyle W. Cayce
Clerk
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evidence regarding the quantity of drugs he asserts were for personal use, we
do not reach the issue. AFFIRMED.
I.
Two police officers noticed Valdez’ vehicle stopped at a green light
and found him—apparently asleep or passed out—in the driver’s seat. The
officers noticed the vehicle smelled like drugs and saw: a cigarillo on Valdez’
chest (the officers testified at trial that cigarillos are often filled with synthetic
cannabinoids); a pill bottle in the center-console cup holder; and a large, open
bag containing green leafy substances, which the officers believed to be
synthetic cannabinoids. After handcuffing Valdez and removing him from
his vehicle, the officers searched it and discovered marihuana, synthetic
cannabinoids, heroin, cocaine, pills, and two firearms. A jury convicted
Valdez of: possession, with intent to distribute, less than 500 grams of
cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (count one); and
using or carrying a firearm during, and in relation to, a drug-trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A) (count two).
Valdez’ presentence investigation report (PSR) recommended his
being “accountable for all of the narcotics seized and the amounts supported
by evidence to be negotiated for s[ale]”, resulting in a converted drug weight
of 32.85 kilograms of synthetic cannabinoids, heroin, cocaine, and cocaine
base. The PSR, inter alia, detailed Valdez’ admissions regarding substance
abuse. For count one (drug-trafficking), the recommended advisory
Sentencing Guidelines sentencing range was 27- to 33-months’
imprisonment. For count two (firearm connected to drug-trafficking),
Valdez was required, in addition to his drug-trafficking-offense sentence, to
“be sentenced to a [consecutive] term of imprisonment of not less than 5
years”. 18 U.S.C. § 924(c)(1)(A)(i).
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In his written objection to the PSR’s drug-quantity calculation, Valdez
asserted: “the total amounts of the different controlled substances found in
the vehicle . . . should not be included in the calculation” because, inter alia,
some of the drugs were intended for personal use, not for distribution.
Following the objection’s being addressed at sentencing, but without any
evidence being presented in support of it, the court overruled the objection
without elaboration. Valdez sought a downward variance from his advisory
Guidelines sentencing range for count one, which the court granted in the
light of his extensive substance-abuse issues. The court then sentenced
Valdez to a below-Guidelines term of 12-months’ imprisonment on count
one and a consecutive term of 60-months’ imprisonment on count two,
resulting in Valdez’ aggregate sentence of, inter alia, 72-months’
imprisonment.
II.
Regarding Valdez’ challenge to the denial of his personal-use
objection, and although post-Booker, the Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, as in this instance, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
The determination of the drug quantity for sentencing purposes is a
factual finding, resulting in review for clear error. E.g., United States v. Dinh,
920 F.3d 307, 310 (5th Cir. 2019) (citations omitted). And a district court
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“need only determine its factual findings at sentencing by a preponderance
of the relevant and sufficiently reliable evidence”. Id. (citations omitted).
“A factual finding is not clearly erroneous as long as it is plausible in [the]
light of the record read as a whole.” Id. (citation omitted).
The drug-quantity determination is “based on the amount of drugs
involved in the offense”. United States v. Rhine, 583 F.3d 878, 885 (5th Cir.
2009) (citing U.S.S.G. § 2D1.1). A district court may adopt a PSR’s drug-
quantity determination “without further inquiry if [the facts presented in the
PSR] have an adequate evidentiary basis with sufficient indicia of reliability
and the defendant does not present rebuttal evidence”. Dinh, 920 F.3d at
313 (emphasis in original) (citations omitted).
The requisite adequate evidentiary basis with sufficient indicia of
reliability supported the PSR’s finding that all of the drugs found in the
vehicle were involved in the drug-trafficking offense for which Valdez was
convicted: possession, with intent to distribute. Along with the drugs and
firearms found in Valdez’ vehicle, the officers found a small scale, which can
be used to measure drugs, and several cell phones. Some of the drugs were
placed in small, individual bags, which are often used for selling drugs.
Additionally, an agent with the Drug Enforcement Agency testified at trial
that: Valdez was a member of Facebook groups “known to sell narcotics”;
and he posted messages offering to sell various types of drugs, including those
found in his vehicle.
Although Valdez objected to the PSR’s drug-quantity calculation,
“[m]ere objections do not suffice as competent rebuttal evidence”. United
States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013) (citations omitted). In his
written objection, Valdez asserted there was “no evidence that all the
controlled substances found in the vehicle were possessed with the intent to
distribute”; as noted, he presented no rebuttal evidence, however, pertaining
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to specific amounts of drugs allegedly intended for personal use. Instead, he
contended in that objection: because he was a heavy drug user, who used
cocaine and synthetic cannabinoids on a daily basis and was found to be
under the influence of some of the drugs present in his vehicle when he was
arrested, it was “more likely than not that some quantity of each of the drugs
found in his vehicle were intended to be used for future personal
consumption”. (Emphasis added.)
But, as discussed, Valdez did not present rebuttal evidence for which
drugs or what amount should have been excluded from the drug-quantity
calculation. Because he did not do so, the district court did not clearly err in
adopting the PSR’s drug-quantity finding. See, e.g., United States v. Pearce,
655 F. App’x 216, 218 (5th Cir. 2016); United States v. Crowder, 591 F. App’x
269, 269–70 (5th Cir. 2015); United States v. Rangel, 108 F. App’x 162, 165–
66 (5th Cir. 2004).
III.
For the foregoing reasons, the judgment is AFFIRMED.
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