United States v. Rodriguez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-10883 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WBLESTER PINEDA RODRIGUEZ; MIGUEL ROJAS RIVERA,

Defendants-Appellants.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 5:97-CR-96-2 - - - - - - - - - - June 30, 1999

Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Wblester Pineda Rodriguez appeals from his conviction of

possession with intent to distribute methamphetamine and

conspiracy to possess with intent to distribute methamphetamine.

Rodriguez and Miguel Rojas Rivera appeal from their sentences for

both offenses. Rodriguez contends that the evidence was

insufficient to support his conviction; that the district court

erred by adjusting his offense level for obstruction of justice

based on his trial testimony; and that the district court erred

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-10883 -2-

by declining to adjust his offense level for minimal

participation. Rivera contends that the district court erred by

adjusting his offense level because he was a leader or organizer

and that he received ineffective assistance of counsel at

sentencing. Rodriguez and Rivera both contend that the district

court erred by attributing methamphetamine from a September 1997

transaction to them.

The evidence at trial was sufficient to prove that Rodriguez

knowingly possessed methamphetamine in November 1997 and that he

intended to distribute that methamphetamine. United States v.

Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993). The evidence was

sufficient to prove an agreement to move methamphetamine from

California to Texas; Rodriguez’s knowledge of that agreement; and

Rodriguez’s voluntary participation in the agreement. United

States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989).

The finding that Rodriguez committed perjury at trial was

not erroneous. Rodriguez’s testimony about his participation in

the offense was directly contradicted by other evidence at the

trial. The district court could have found that Rodriguez

willfully gave false testimony concerning material matters. See

United States v. Dunnigan, 507 U.S. 87, 94 (1993).

Rodriguez was sentenced on activity in which he actually was

involved. No downward adjustment for Rodriguez’s role in the

offense was necessary. United States v. Atanda, 60 F.3d 196, 199

(5th Cir. 1995).

The finding that Rivera was a leader or organizer was not

erroneous. There were five or more participants in Rivera’s No. 98-10883 -3-

offense and the nature and extent of Rivera’s participation in

the offense were sufficient for a leader/organizer finding. See

United States v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994); United

States v. Barreto, 871 F.2d 511, 512 (5th Cir. 1989).

Finally, the estimate used for the September 1997 drug run

was not erroneous. See United States v. Sherrod, 964 F.2d 1501,

1508 (5th Cir. 1992). The two drug runs were done in near-

identical fashion; it was not unreasonable to assume that the

same amount of methamphetamine was involved in both drug runs.

AFFIRMED.