* 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this opinion should not be published and is not precedent except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. 05-10793

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YOSVAN HUERTA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:04-CR-192-1

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

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Yosvan Huerta appeals the sentence imposed following his

guilty plea conviction of possession of a controlled substance

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(ii)(II), and unlawful possession of a firearm in

furtherance of a drug trafficking offense and aiding and

abetting, in violation of 18 U.S.C. §§ 924(c) and 2.

Huerta argues that the district court erred when it

determined that seized cash was drug proceeds attributable to

United States Court of Appeals

Fifth Circuit

F I L E D

May 10, 2006

Charles R. Fulbruge III

Clerk
No. 05-10793

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Huerta and converted the cash into an equivalent amount of

methamphetamine, when it denied Huerta an acceptance of

responsibility reduction, when it included drugs other than

cocaine to calculate Huerta’s base offense level in violation of

United States v. Booker, 543 U.S. 220 (2005), and when it applied

Booker retroactively.

The record establishes that the cash that was seized was

stored in a lockbox in Huerta’s home, with Huerta’s girlfriend

having access to the cash, which she was readily able to move at

Huerta’s direction. Also, the record indicates that Huerta had

no apparent source of cash other than drug trafficking, Huerta

asserted that he had not previously engaged in cocaine

trafficking, from the amount of cocaine seized it appeared that

Huerta had not sold the cocaine that he had only recently

obtained, Huerta admitted that he had previously dealt

methamphetamine, he admitted that the methamphetamine that was

found in his home belonged to him, and his girlfriend who knew

where Huerta kept cash, drugs, and weapons, reported to the

police that Huerta was a methamphetamine dealer. These facts

indicate that the district court’s findings that the cash

belonged to Huerta and were the proceeds of Huerta’s

methamphetamine distribution were plausible in light of the

record. See United States v. Johnston, 127 F.3d 380, 403 (5th

Cir. 1997). Moreover, the district court did not commit error

under the Guidelines when it based Huerta’s sentence on a type
No. 05-10793

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and quantity of drug not specified in the count of conviction. 

See U.S.S.G. § 2D1.1, comment. (n.12). The district court

therefore did not clearly err in its determination of Huerta’s

offense level. See United States v. Villanueva, 408 F.3d 193,

203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005).

Huerta also argues that the district court erred when it

denied him an acceptance of responsibility adjustment pursuant to

U.S.S.G. § 3E1.1. The ruling denying the acceptance of

responsibility adjustment was made after the district court

determined that the cash was attributable to Huerta and should be

converted into methamphetamine. These determinations of relevant

conduct were plausible in light of the record. Because a

defendant who “falsely denies” relevant conduct “has acted in a

manner inconsistent with acceptance of responsibility,” § 3E1.1,

comment. (n.1), the district court’s ruling, based upon Huerta’s

relevant conduct objections, is not without foundation. See

United States v. Pierce, 237 F.3d 693, 695 (5th Cir. 2001);

United States v. Brace, 145 F.3d 247, 264 (5th Cir. 1998) (en

banc). The district court therefore did not clearly err when it

denied Huerta an acceptance of responsibility adjustment. See

United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996).

Huerta also argues that the district court erred when it

determined his relevant conduct because under Booker the district

court’s sentencing determinations are limited to facts that were

either determined by a jury or admitted by a defendant. This
No. 05-10793

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argument is without merit. Post-Booker, the district court

sentenced Huerta under advisory Guidelines. Booker, 543 U.S. at

245-46. Under the advisory Guidelines scheme mandated by Booker,

the Sixth Amendment does not impede a sentencing judge from

finding all facts relevant to sentencing. See United States v.

Mares, 402 F.3d 511, 517-19 (5th Cir.), cert. denied, 126 S. Ct.

43 (2005)).

Finally, Huerta argues that the district court erred when it

applied Booker retroactively. This argument is also without

merit. See United States v. Scroggins, 411 F.3d 572, 575-76 (5th

Cir. 2005) (rejecting argument that retroactive application of

advisory guidelines violated ex post facto principles); United

States v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005) (applying

the remedial opinion of Booker to a sentencing hearing where the

underlying offense was committed pre-Booker does not violate ex

post facto or due process principles).

For the foregoing reasons, the judgment of the district

court is AFFIRMED.