United States v. Farias

112 F. App'x 374

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 16, 2004
• Docket: 04-50348
• Status: Unpublished

Opinion

PER CURIAM: *

Joshua Kane Farias appeals his sentence, following his guilty plea convictions for conspiracy to possess and possession with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. He contends the district court erred in imposing a two-level enhancement pursuant to U.S.S.G. § 3B1.4 for using his two minor children to avoid detection of his offenses.

The district court’s application of the Sentencing Guidelines is reviewed de novo; its factual findings for clear error. E.g., United States v. Ocana, 204 F.3d 585, 588 (5th Cir.2000). Farias admitted that he was instructed to take his children on drug-smuggling trips to avoid detection by law enforcement, and his children accompanied on two such trips. He failed to provide any other plausible explanation for taking his children with him on those trips. The district court did not clearly err. See United States v. Alarcon, 261 F.3d 416, 423 (5th Cir.2001).

Farias also contends, for the first time on appeal, that the increase of his sentence due to drug quantity was improper under Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), because those facts were not alleged in the indictment and not found beyond a reasonable doubt by the district court or admitted by him. As Farias concedes, this contention is foreclosed by United States v. Pineiro, 377 F.3d 464, 473 (5th Cir.2004), petition for cert. filed, (U.S. 14 July 2004) (No. 04-5263).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.