Verdusco v. USPC

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 21, 1997
• Docket: 96-60426
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 96-60426 _________________

JOSE VALDEMAR TOPETE VERDUSCO,

Petitioner,

versus

U.S. PAROLE COMMISSION,

Respondent.

Appeal from the Decision of the United States Parole Commission (18 USC 4106A)

April 7, 1997 Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Valdemar Topete Verdusco was arrested in Mexico and

convicted of transporting 9.977 kilograms of methamphetamine. The

Mexican court sentenced him to ten years imprisonment and imposed

a 12,000 peso fine. Pursuant to the United States-Mexico Treaty on

the Execution of Penal Sentences, Verdusco transferred to the

United States to serve his sentence. After the transfer, the

Parole Commission held a hearing to determine his release date. In

a report for the Commission, a probation officer concluded that the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. offense most similar to that for which Verdusco was convicted was

possession of methamphetamine with intent to distribute in

violation of 21 U.S.C. § 841(b)(1)(A)(viii). The probation officer

recommended a total offense level of 32; when combined with

Verdusco’s criminal history category of III, this offense level

produced a guideline range of 155 to 188 months imprisonment.

However, Verdusco could not receive an imprisonment term that

exceed 120 months (his ten-year Mexican sentence).

At the time Verdusco committed his offense, the Sentencing

Guidelines distinguished between levo-methamphetamine (“l-

methamphetamine”) and dextro-methamphetamine (“d-methamphetamine”).

L-methamphetamine is “grossly different from other forms of

methamphetamine, in that l-methamphetamine produces little or no

physiological effect when ingested.” United States v. Acklen, 47

F.3d 739, 742 (5th Cir. 1995) (internal quotation marks and

citation omitted). At the Commission hearing regarding his release

date, Verdusco did not argue that the Mexican authorities caught

him with l-methamphetamine, let alone offer any proof on this

point. Rather, he contended that the Commission had to determine

by a preponderance of the available evidence that d-

methamphetamine, rather than l-methamphetamine, was involved. The

Commission uses the preponderance of the evidence standard to

resolve disputes of material fact. 28 C.F.R. § 262(h)(5).

The Commission found that the government had met its burden of

-2- persuasion. The Commission noted that (1) l-methamphetamine had

been determined to have little or no physiological effect, (2)

Verdusco had previous drug convictions, (3) Verdusco had purchased

a car for $3,000 for his trip to Mexico, and (4) Verdusco was

supposed to be paid $20,000 for obtaining the drugs. The

Commission reasoned that it was not credible to think that anyone

would pay Verdusco to travel to Mexico to buy illegal narcotics

with little or no psychological effect. It thus determined that

the Mexican authorities had arrested Verdusco for transportation of

d-methamphetamine, not l-methamphetamine. On that basis, the

Commission decided that he fell within the 155 to 188 month range

(which meant a term of 120 months). If the Commission had found

that Verdusco’s offense involved l-methamphetamine, he would have

received a guideline range of 64-78 months.

Verdusco challenges the Commission’s finding that his offense

involved d-methamphetamine. We review this finding for clear

error. United States v. Allison, 63 F.3d 350, 351 (5th Cir. 1995).

In this case, given the overwhelming inferential and

circumstantial proof that Verdusco was transporting d-

methamphetamine, we determine that the Commission did not clearly

error in finding, by a preponderance of the evidence, that

Verdusco’s offense involved d-methamphetamine.

AFFIRMED.

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