IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10975

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

OCARIO RUIZ,

Defendant - Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CR-73-3

Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Ocario Ruiz pleaded guilty to one count of conspiracy to possess, with

intent to distribute, cocaine. He was sentenced, inter alia, to 360 months’

imprisonment. Ruiz contends, under Guideline § 1B1.3(a)(1)(B) (defining

“relevant conduct” for jointly undertaken criminal activities): his sentence

should have been based solely on cocaine, which was within the scope of the

conspiracy and reasonably foreseeable to him; and, accordingly, he should not

United States Court of Appeals

Fifth Circuit

F I L E D

August 9, 2011

Lyle W. Cayce

Clerk

 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.

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No. 10-10975

be held responsible for the methamphetamine that also was involved because it

was not reasonably foreseeable to him. 

Although, post-Booker, the Guidelines are advisory only, and an ultimate

sentence is reviewed for reasonableness under an abuse-of-discretion standard,

the district court must still properly calculate the advisory Guidelines

sentencing range for use in deciding on the sentence to impose. Gall v. United

States, 552 U.S. 38, 50-51 (2007). In that respect, its application of the

Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). The court’s determination

of the type and quantity of drugs for which defendant is responsible is a factual

finding and, therefore, is reviewed only for clear error. E.g., United States v.

Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). 

In determining defendant’s base-offense level, courts may consider drug

quantities not specified in the count of conviction if they are part of defendant’s

“relevant conduct”, as defined by Guideline § 1B1.3. E.g., United States v. Wall,

180 F.3d 641, 644-45 (5th Cir. 1999). That Guideline provides: defendant’s

sentence shall be determined by “all acts and omissions committed, aided,

abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant”, U.S.S.G. § 1B1.3(a)(1)(A), as well as “all reasonably foreseeable acts

and omissions of others in furtherance of [a] jointly undertaken criminal

activity”, U.S.S.G. § 1B1.3(a)(1)(B). That Guideline’s commentary provides: 

“defendant is accountable for all quantities of contraband with which he was

directly involved”. U.S.S.G. § 1B1.3 cmt. n.2. That commentary also clarifies

that the conduct referenced in Guideline § 1B1.3(a)(1)(B), regarding the

limitation of reasonable foreseeability, “applies only in respect to the conduct . . .

of others” and is inapplicable to those instances in which defendant is directly

involved. Id.; see also United States v. Carreon, 11 F.3d 1225, 1237 (5th Cir.

1994).

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Reasonable foreseeability vel non does not apply in this instance because

Ruiz personally participated in the conduct for which he was found accountable

at sentencing. Ruiz was present at a stash house—which was operated by the

organization from which he routinely purchased drugs—with the intention of

taking control of a drug shipment containing both cocaine and

methamphetamine. He attempted to use his vehicle to remove the narcotics

from the stash house and to prevent the law-enforcement agents from

discovering the organization’s source of supply. Further, when agents executed

a search warrant at the stash house, Ruiz was observed placing into his vehicle

packages found to contain both cocaine and methamphetamine. 

The record therefore supports that Ruiz personally participated in the

conduct for which he was sentenced. Accordingly, without regard to reasonable

foreseeability, Ruiz was accountable for the full quantity of all drugs within the

packages. See U.S.S.G. § 1B1.3(a)(1)(A). Although Ruiz maintains he believed

the packages contained only cocaine, his knowledge of their specific contents is

immaterial. In other words, Ruiz was responsible for the narcotics involved in

the conduct for which he personally participated, even if he did not know the

type drugs contained in the packages. See, e.g., United States v. ValenciaGonzales, 172 F.3d 344, 345-46 (5th Cir. 1999). 

AFFIRMED.

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