United States v. Nakauchi

86 F. App'x 708

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 30, 2004
• Docket: 03-30337
• Status: Unpublished

Opinion

GARZA, Circuit Judge. 1

In this appeal, we review Defendant— Appellant’s, Lawrence Nakauchi (hereinafter, “Nakauchi”), conviction and sentence for conspiracy to posses with intent to distribute MDMA, commonly know as Ec stasy, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Nakauchi argues that the district court erred by including approximately 22,000 tablets of MDMA in its sentencing calculations. Nakauchi claims he had withdrawn from the conspiracy to posses with the intent to distribute the drugs because he had already been arrested and given a confession to authorities prior to the government’s seizure of the 22,000 tablets of MDMA.

We review the district court’s interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Huerta, 182 F.3d 361, 364 (5th Cir.1999).

A defendant is presumed to continue in a conspiracy unless he makes a substantial affirmative showing of withdrawal, abandonment, or defeat of the conspiratorial purpose. United States v. Torres, 114 F.3d 520, 525 (5th Cir.1997). The district court did not clearly err in finding that Nakauchi’s confession to authorities was insufficient to show his withdrawal from the conspiracy. The record indicates that Nakauchi provided only limited information, not a full confession. See United States v. Jimenez, 622 F.2d 753, 757-58 (5th Cir.1980).

For the foregoing reasons, we affirm the conviction and sentence.

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 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.