* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

September 28, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10177

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOAQUIN CADENA MURIETTA MALDONADO,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:02-CR-42-2-C

--------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Joaquin Cadena Murietta Maldonado appeals the sentence

imposed following his guilty-plea conviction for conspiracy to

import more than five kilograms of cocaine and more than 1000

kilograms of marijuana. He argues that the district court

clearly erred in calculating the drug quantities attributable to

him under the Sentencing Guidelines. Because he has not shown

that the information in the Presentence Report (PSR) concerning

the drug quantities involved in the offense was “materially
No. 04-10177

-2-

untrue, inaccurate, or unreliable,” he has not shown that the 

district court clearly erred in adopting the information in the

PSR concerning the drug quantities. United States v. PuigInfante, 19 F.3d 929, 943 (5th Cir. 1994); United States v.

Angulo, 927 F.2d 202, 205 (5th Cir. 1991). His argument that the

district court erred in relying on the uncorroborated hearsay

statements of his coconspirators lacks merit. See United States

v. Cooper, 274 F.3d 230, 240 (5th Cir. 2001). He failed to show

that he did not intend or was not reasonably capable of

purchasing 50 kilograms of cocaine in the Florida transaction;

therefore, the district court did not clearly err in including

this quantity in the drug calculations for sentencing purposes. 

See United States v. Davis, 76 F.3d 82, 85 (5th Cir. 1996).

For the first time on appal, Murietta Maldonado argues that

the drug quantities should not have been aggregated because the

Government did not establish that they were all in furtherance of

the same conspiracy. This claim is reviewed for plain error. 

United States v. Olano, 507 U.S. 725, 731-37 (1993). He was held

responsible for the marijuana and cocaine that he imported,

bought, or sold during the course of the conspiracy as alleged in

the indictment. He stipulated that he was involved in a single

conspiracy which continued during the period alleged in the

indictment. He did not establish that the district court erred

in finding that he should be held responsible for the drug
No. 04-10177

-3-

quantities imported throughout the ongoing conspiracy. See

United States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003).

Murietta Maldonado has filed a letter pursuant to FED.

R. APP. P. 28(j) calling our attention to the Supreme Court’s

recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). 

We have held that Blakely does not apply to the United States

Sentencing Guidelines. United States v. Pineiro, No. 03-30437,

2004 WL 1543170 (5th Cir. July 12, 2004), petition for cert.

filed, (U.S. July 14, 2004). He acknowledges that his argument

is foreclosed by Pineiro, but he states that he is raising this

issue to preserve it for possible Supreme Court review. A panel

of this court cannot overrule a prior panel’s decision in the

absence of an intervening contrary or superseding decision by

this court sitting en banc or by the United States Supreme Court. 

United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.

2002). Murietta Maldonado’s motion requesting that the court

call for supplemental briefing regarding the significance of

Blakely is denied.

AFFIRMED; MOTION DENIED.