IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41114

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO JAVIER MAYA, also known as Tampico, also known as Daniel 

Ibarra,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:13-CR-317-2

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Francisco Javier Maya was convicted of conspiring to possess with the 

intent to distribute more than 100 kilograms of marihuana in violation of 21 

U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) (Count 1), and aiding and abetting the 

substantive offense of possession with intent to distribute approximately 

454.54 kilograms of marihuana in violation of § 841(a)(1) and (b)(1)(B) and 18 

 

* 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

August 29, 2016

Lyle W. Cayce

Clerk

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No. 14-41114

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U.S.C. § 2 (Count 2). Following this conviction, in a separate case, Maya 

pleaded guilty to conspiring to possess with the intent to distribute 1,000 

kilograms or more of a substance containing a detectible amount of marihuana 

in violation of §§ 846, 841(a)(1) and (b)(1)(A) (Count 1). At a consolidated 

sentencing, the district court overruled Maya’s objections regarding relevant 

conduct and held him accountable for 4,156.456 kilograms of marihuana based 

on the application of the grouping provisions of Chapter 3, Part D of the 

Guidelines, and the relevant conduct provisions under U.S.S.G. § 1B1.3. The 

court determined Maya’s base offense level to be 34 under U.S.S.G. 

§ 2D1.1(c)(3) (2013), and ultimately sentenced him to a total of 189 months of 

imprisonment.

On appeal, Maya argues that the district court erred in applying the 

relevant conduct provision of § 1B1.3(a) in determining his base offense level 

under § 2D1.1(c). Specifically, he challenges the district court’s decision to 

attribute to him as relevant conduct: (1) 664.07 kilograms of marihuana seized 

in Chicago, Illinois, on December 20, 2009; (2) 506.09 kilograms of marihuana 

seized in Pasadena, Texas, in August 2011; and (3) 31.752 kilograms he 

supplied in 2012. Notably, Maya concedes that the district court reasonably

could have attributed to him as relevant conduct 2,954.44 kilograms of 

marihuana. At the time he was sentenced, “[a]t least 3,000 KG but less than 

10,000 KG of Marihuana” was all that was required to warrant the base offense 

level of 34−the base offense level assessed in this case. See § 2D1.1(c)(3) (2013).

This court reviews the district court’s application of the Guidelines de 

novo and its factual findings for clear error. United States v. Hinojosa, 749 

F.3d 407, 411 (5th Cir. 2014). The district court’s determination of what 

constitutes relevant conduct is a factual finding reviewed for clear error.

United States v. Buck, 324 F.3d 786, 796 (5th Cir. 2003). A factual finding is 

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not clearly erroneous if it is plausible in light of the record read as a whole. 

Rhine, 583 F.3d at 885. With respect to Maya’s offenses of conviction, the 

district court was required to consider unadjudicated conduct that was “part of 

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

conviction” as relevant conduct. § 1B1.3(a)(2); Buck, 324 F.3d at 796; United 

States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009).

The district court did not specify through which avenue (common scheme 

or plan or same course of conduct) it reached its relevant-conduct finding. The 

Government contends that based on the evidence, the district court could have 

plausibly found that Maya’s involvement in two different marihuana 

transportation cells were substantially connected by a similar modus operandi

and a common purpose, and thus constituted part of the same common scheme 

or plan as the offense of conviction. See § 1B1.3, comment n. 9(A) (2013) (redesignated as § 1B1.3, comment n. 5(B) (2015)). We agree. 

Maya, in concert with his co-conspirators, recruited truck drivers, 

tractors, trailers, and associates for multiple drug trafficking associations with 

the common purpose of transporting bulk shipments of marihuana. The

district court attributed to Maya as relevant conduct 664.07 kilograms of 

marihuana seized in Chicago, Illinois, on December 20, 2009. Maya admitted 

that this marihuana shipment originated in Edinburg, Texas, and that he 

coordinated the transportation with three unnamed co-conspirators.

Additionally, in June and July 2011, Maya, who coordinated the transportation 

of marihuana for a “Mr. Salinas,” secured an undercover agent from the Drug 

Enforcement Administration (DEA) to provide the tractor-trailer and driver, 

and 506.09 kilograms of marihuana was transported and ultimately seized in 

Pasadena, Texas, in August 2011.

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The record shows that Maya’s conduct with respect to these drug 

amounts was part of his ongoing drug trafficking operation to coordinate the 

transportation of large shipments of marihuana, operating with a similar 

modus operandi and the same common purpose as his offenses of conviction. 

His conduct in connection with these amounts is therefore part of a common 

scheme or plan. See § 1B1.3. Consequently, we do not find that the district 

court clearly erred in including these drug amounts as relevant conduct for the 

calculation of the applicable base offense level. See § 1B1.3, comment n. 9(A) 

(2013) (re-designated as § 1B1.3, comment n. 5(B) (2015)).

Maya also challenges the inclusion as relevant conduct of 31.752 

kilograms of marihuana he supplied in 2012. Even if the court were to accept 

Maya’s argument with respect to this load, his base offense level would not 

change given that the other amounts challenged were properly included as 

relevant conduct. See § 2D1.1(c)(3) (2013). Thus, any error with respect to the 

district court’s drug quantity calculation would be harmless. See United States 

v. Solis, 299 F.3d 420, 462 (5th Cir. 2002). 

Accordingly, the judgment of the district court is AFFIRMED.

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