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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51527

United States of America

Plaintiff-Appellee

v.

Leonardo Saucedo-Valverde

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Texas, El Paso Division 

USDC No. 3:06-cr-01075-KC-ALL

Before DAVIS, WIENER, and PRADO, Circuit Judges.

PER CURIAM:1

This is an appeal from a sentence following a guilty-plea for importing

marijuana into the United States under 21 U.S.C. §§ 952(a) and 960(a)(1), and

for possession of marijuana with intentto distribute under 21 U.S.C. § 841(a)(1).

The issue raised in this appeal is whether the district court clearly erred in

estimating the quantity of marijuana attributable to appellant, Leonardo

Saucedo-Valverde, for purposes of determining his sentence. Based on our

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 2007

Charles R. Fulbruge III

Clerk
No. 06-51527

2

review ofthe record and after considering briefs of counsel, we find no clear error

and affirm.

I.

Appellant was arrested at the United States-Mexico border while driving

from Juarez, Mexico to Denver, Colorado, after border patrol officers discovered

31.80 gross kilograms (weight including packaging) of marijuana hidden inside

the dashboard. Appellant admitted that he was being paid $5,000 to transport

an unknown quantity of marijuana from Mexico to Colorado and pleaded guilty

to importing marijuana and possession of marijuana with intent to distribute.

Appellant also admitted that he had driven marijuana-laden vehicles into the

United States on two prior occasions — he previously received $4,500 to drive

a vehicle from Mexico to Colorado and $5,000 to drive a vehicle from Mexico to

Oklahoma. 

Based on appellant’s statements about the prior importation of unknown

quantities of marijuana into the United States, the probation officer concluded

that it could be inferred that appellant transported the same quantity of drugs

on the two prior occasions as on this occasion, for a total of 95.37 kilograms.

Based on this inference, the probation officer assigned appellant a base offense

level of 24 pursuant to U.S.S.G. § 2D1.1(a)(3). Appellant received a two-level

“safety-valve” adjustment and a three-level adjustment for acceptance of

responsibility which resulted in a total offense level of 19. Appellant had no

prior criminal convictions and so was assigned a criminal history category of I.

Based on a total offense level of 19 and a criminal history category I, appellant’s

guideline imprisonment range was 30 to 37 months. 

Appellant objected to the probation officer’s estimate of the drug quantity

as speculative and argued that there was no reliable evidence or information to

supportthe accuracy ofthe calculation. He re-urged this objection at sentencing,

butthe district court overruled the objection and found thatthe relevant conduct
No. 06-51527

3

was “correctly scored.” The district court sentenced appellant to 30 months of

imprisonment and two years supervised release. 

II.

After United States v. Booker, this Court continues to review the district

court’s interpretation and application of the Sentencing Guidelines de novo.

United States v. Villaneuva, 408 F.3d 193, 203 n.9 (5th Cir. 2005), cert denied,

126 S.Ct. 268 (2005); see also United States v. Valdez, 453 F.3d 252, 262 (5th

Cir. 2006), cert denied, 127 S.Ct. 456 (2006). “The district court’s calculation of

the quantity of drugs involved in an offense is a factual determination . . .

entitled to considerable deference and will be reversed only if [it is] clearly

erroneous.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)

(internal quotations and citations omitted). Findings are deemed “clearly

erroneous only if, based on the entire evidence, [the court is] left with the

definite and firm conviction that a mistake has been committed.” Valdez, 453

F.3d at 262 (citing United States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2006)).

In making a factual finding regarding the quantity of drugs attributable

to a defendant, “the district judge may consider any information that has

sufficient indicia of reliability to support its probable accuracy,” and the district

court must make such factual findings “by a preponderance of the relevant and

sufficiently reliable evidence.” Betancourt, 422 F.3d at 247. Additionally, “[a]

district court may adopt facts contained in the [Pre-Sentencing Report] (PSR)

without further inquiry if the facts have an adequate evidentiary basis and the

defendant does not present rebuttal evidence.” United States v. Alford, 142F.3d

825, 832 (5th Cir. 1998). “The defendant bears the burden of showing that the

information in the PSR relied on by the district court is materially untrue.” Id.

(citing United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995)); see also

United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990). 
No. 06-51527

4

In determining appellant’s base offense level based on the types and

quantities of drugs involved, the district court was allowed to consider his

“relevant conduct” as defined in U.S.S.G. § 1B1.3. U.S.S.G. Manual § 2D1.1,

cmt. n.12 (2006); see also United States v. Wall, 180 F.3d 641, 644 (5th Cir.

1999). Such “relevant conduct” includes “all acts and omissions that were part

of the same course of conduct or common scheme or plan as the offense of

conviction.” Wall, 180 F.3d at 645. In making a factual finding as to the

applicable quantity of drugs for sentencing purposes based on such relevant

conduct, the district court was entitled to consider estimates, provided that the

estimates were reasonable and based on “relevant and sufficiently reliable

evidence.” Betancourt, 422 F.3d at 247–48 (holding that it was not clear error

for the district court to multiply the amount of drugs sold to one person by the

number of people to whom defendant sold); see also United States v. Medina, 161

F.3d 867, 876 (5th Cir. 1998) (noting that the quantity of drugs need not be

limited to the actual quantities seized; the district judge can make an estimate).

The issue in this case,therefore, is whether the district court clearly erred

in finding that the evidence was sufficient to support the inference that the

quantities of marijuana were the same in the two prior incidents in which

appellant imported marijuana into the United States as the quantity carried in

the crime of conviction. 

III.

In the present case,the district courtinferred that appellant smuggled the

same amount of marijuana into the United States during two prior episodes of

smuggling as he did during his third attempt. The district court based this

extrapolation on the fact that appellant was paid similarly each time and

traveled similar distances. The district court was entitled to find these facts

sufficient to conclude that the expenses for the trips were similar because the

appellant traveled approximately the same distance in each trip. Likewise, the
No. 06-51527

2 This is because base offense levels for sentencing purposes increase as quantities

smuggled increase. See U.S.S.G. § 2D1.1(c). 

5

court was entitled to determine that the quantities smuggled were similar

because the defendant was paid similar amounts each time—compensation

relates to risk, and risk is tied to drug quantity.2 Basing the sentence on such

facts was not clearly erroneous as this information has “sufficient indicia of

reliability to support its probable accuracy.” Valdez, 453 F.2d at 267. 

In an unpublished opinion, United States v. Perez, we found evidence very

similar to that in the present case to be sufficient to support the district court’s

drug quantity estimate. 183 Fed. Appx. 477, 481 (5th Cir. 2006). In that case,

the defendant was hired by a supplier to transport three loads of marijuana into

the United States using the same vehicle each time, and he was paid the same

amount for each trip. Id. at 479. Defendant was apprehended on his third trip.

Id. From this evidence, we held that the district court did not clearly err in

finding that, for sentencing purposes, the evidence was sufficient to justify

tripling the amount attributable to defendant based on the quantity with which

he was caught upon being arrested. Id. The facts of the present case are similar

to those in Perez. In this case, appellant smuggled marijuana hidden in vehicles

into the United States three times, was paid similar or identical amounts on

each trip, traveled similar or identical distances each time, and was caught on

his third trip. 

This Court’s holding in Cabrera is also instructive. 288 F.3d at 170–73.

In Cabrera, we dealt with the issue of determining how many immigrants were

smuggled by defendant into the United States on previous occasions. Id. at 171.

We held that a number-of-immigrants finding could be based on an estimate

similar to the estimations applied in cases determining applicable drug

quantities, including those involved in related conduct, for sentencing purposes.

Id. In Cabrera, we inferred that at least two immigrants were smuggled into
No. 06-51527

3 The basis for wanting to appear as a family unit rests on the fact that Border Patrol

has a policy of returning families to Mexico instead of detaining them and charging them with

illegal entry. Cabrera, 288 F.3d at 166. 

6

the United States per trip based on the fact that defendants paid parents to

permit their children to accompany immigrants across the border. Id. at 167.

Under this scheme, the immigrants posed as the mother and father of the

children to avoid prosecution if discovered by the border patrol.3Id. On one of

the trips, an INS agent testified, the INS found only one person used a child for

such pretense; however, we agreed with the district court that a preponderance

of the evidence supported the finding that an inference of two immigrants per

trip could be made. Id. Similarly, in the present case, where appellant was paid

$5,000 to smuggle marijuana into the United States on this trip, and where he

was paid $5,000 and $4,500 on prior trips, it is reasonable to infer that a similar

quantity of marijuana was transported on each trip. 

Appellant argues that Perez is distinguishable because in this case the

supplier was different on each of his trips (at least to his knowledge) and the

vehicles used each time were different. We are not persuaded that these facts

are sufficient to undermine the district court’s findings. Appellant does not

explain why involvement of different suppliers indicates different quantities

were transported where he was paid a similar or identical fee and traveled a

similar or identical distance. Moreover, in the crime of conviction, 31.79

kilograms of marijuana were found wrapped in bundles under the vehicle’s

dashboard, and the vehicles used in the previous trips, though different vehicle

models, have dashboards and other compartments that could just as easily have

held equal quantities of marijuana. We find that the trips were sufficiently

similar such that the district court’s extrapolation of drug quantities is

reasonable and not clearly erroneous. 
No. 06-51527

7

V.

Accordingly, the sentence is affirmed. 

AFFIRMED.