IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41237

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RIGOBERTO MUNOZ-VARGAS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:11-CR-966-1

Before JONES, WIENER, and GRAVES, Circuit Judges.

WIENER, Circuit Judge:*

Defendant-Appellant Rigoberto Munoz-Vargas appeals the sentence 

imposed following his guilty plea convictions for possession with intent to 

distribute approximately 1.5 kilograms of methamphetamine and for being an 

alien in possession of a firearm. Munoz-Vargas contends that the district 

court erred when calculating his base offense level because it took into account 

relevant conduct involved in dismissed charges. We review the district court=s 

fact findings on drug quantity and relevant conduct for clear error, and, finding

none, we affirm.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.

1 United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009) (relevant conduct); United 

United States Court of Appeals

Fifth Circuit

FILED

January 9, 2014

Lyle W. Cayce

Clerk

 

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Because Munoz-Vargas raised objections but did not present evidence to 

rebut the information in the presentence investigation report (APSR@) 

concerning the relevant conduct, the district court was entitled to rely on the 

PSR without further inquiry.2 In calculating a base offense level of 38, the 

district court found that Munoz-Vargas was responsible for a total in excess of 

30,000 kilograms of marijuana or its equivalent.3

According to the PSR, the 1.49 kilograms of methamphetamine seized in 

November 2011 was the equivalent of 29,800 kilograms of marijuana. In a 

post-arrest interview, Munoz-Vargas admitted that he had transported 

marijuana hidden in the tires of the load vehicles from Houston, Texas, to 

Little Rock, Arkansas, and that he had traveled to Kansas to take possession 

of $136,500 in drug proceeds. Evidence established that the load vehicles 

typically carried at least 45 kilograms of marijuana and that Munoz-Vargas 

had traveled to Little Rock at least three times, including once in October 2011, 

just one month before the methamphetamine seizure. When combined with 

three 45-kilogram loads transported to Little Rock, the $136,500 in drug 

proceedsBthe equivalent of 103 kilograms of marijuanaBis more than enough 

to reach the 30,000 kilograms of marijuana necessary to justify a base offense 

level of 38.4 Therefore, even if we were to ignore the various other seizures of 

drugs and drug proceeds described in the PSR, Munoz-Vargas has not shown 

States v. Betancourt, 422 F3d. 240, 246 (5th Cir. 2005) (drug quantity); see also United States 

v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (AThere is no clear error if the district 

court=s finding is plausible in light of the record as a whole.@).

2 See United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010).

3 See U.S.S.G. ' 2D1.1(c)(1).

4 See id. In drug distribution cases, we broadly define what constitutes the Asame 

course of conduct@ or Acommon scheme or plan,@ components of relevant conduct under Section 

1B1.3 of the Guidelines. United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009).

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that the district court clearly erred in determining that his base offense level 

was 38.

Munoz-Vargas suggests that the district court also erred in applying a 

two-level increase under Section 2D1.1(b)(12) of the United States Sentencing 

Guidelines because: (1) the apartment where the methamphetamine was found 

was not a place of manufacturing or distribution; (2) no precursor chemicals 

were present; (3) there was no evidence that the methamphetamine was 

distributed to couriers from the apartment; and (4) he did not have supervisory 

control or substantial effective control over the apartment. The enhancement 

applies if the defendant knowingly maintains a premises for the purpose of 

distributing a controlled substance, including storage of a controlled substance 

for the purpose of distribution.5 Munoz-Vargas admitted that he paid the rent 

for the apartment where the methamphetamine was found and that he used 

the scales found in the apartment to weigh drugs. He and his girlfriend were 

the only adults who had access to the apartment. His nephew admitted that 

he had delivered three separate loads of drugs to Munoz-Vargas at the 

apartment. The evidence also established an alternative basis for application 

of the two-level increase: Numerous coconspirators transported drugs to a 

residence that Munoz-Vargas shared with his wife, from which he then 

arranged to transport the drugs to other states. Munoz-Vargas also used this 

residence to store drug proceeds and arranged to transport the proceeds from 

the residence to Mexico. In light of the foregoing, Munoz-Vargas has not 

shown that the application of the enhancement was clearly erroneous.6

Munoz-Vargas also contends that the district court erred in applying a 

two-level sentencing enhancement under Section 3B1.1 of the Guidelines for 

5 See U.S.S.G. ' 2D1.1, comment (n.17).

6 See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).

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his role as a manager or supervisor in the offense because the court based the 

application on relevant conduct that should not have been considered. The 

PSR amply supports the district court=s findings by showing that 

Munoz-Vargas recruited, supervised, and paid numerous couriers to transport 

marijuana and other drugs from Mexico to his apartment or his residence in 

Houston and then to transport the drugs to other states. The district court=s 

finding that he was a manager or a supervisor was thus plausible in view of 

the record as a whole and supports the sentencing enhancement.7

Finally, Munoz-Vargas insists that the district court erred in applying a 

two-level enhancement under Section 2D1.1(b)(14) of the Guidelines, which 

applied because he had received an aggravating role adjustment under ' 3B1.1 

and was Adirectly involved in the importation of a controlled substance.@ The 

PSR recounted several specific instances when Munoz-Vargas directed 

individuals in the importation of marijuana from Mexico and, if successful, to 

his residence in Houston. The district court=s finding that Munoz-Vargas was 

directly involved in the importation of controlled substances is therefore 

plausible in view of the record as a whole.8

AFFIRMED.

7 See United States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001); Villanueva, 408 F.3d 

at 203.

8 See United States v. Rodriguez, 666 F.3d 944, 946 (5th Cir.), cert. denied, 132 S. Ct. 

2115 (2012).

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GRAVES, Circuit Judge, concurring in part and dissenting in part.

Because I would find that the district court erred in calculating the base 

offense level based on relevant conduct and in applying the manager and 

importation enhancements, I would reverse on those issues. Therefore, I 

respectfully dissent in part.

The majority finds that, because Munoz-Vargas raised objections but did 

not present evidence to rebut the information in the presentence investigation 

report (PSR) concerning the relevant conduct, the district court was entitled to 

rely on the PSR without further inquiry. The majority further cites United 

States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010). While this is a correct 

statement of the law, it skips one very important step. As this court said in 

Scher, “[i]n making factual determinations at sentencing, the district court is 

entitled to rely upon the information in the PSR as long as the information 

bears some indicia of reliability.” Id. (citing United States v. Shipley, 963 F.2d 

56, 59 (5th Cir.1992)). (Emphasis added).

Munoz-Vargas asserts that the district court clearly erred in its 

application of the relevant conduct provisions of U.S.S.G. § 1B1.3(a)(1) and (2)

to calculate his base offense level under U.S.S.G. § 2D1.1(c). Section 1B1.3 

provides that the base offense level and specific offense characteristics shall be 

determined on the basis of the following:

(1) (A) all acts and omissions committed, aided, abetted, 

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

the defendant; and 

(B) in the case of a jointly undertaken criminal activity (a 

criminal plan, scheme, endeavor, or enterprise undertaken by the 

defendant in concert with others, whether or not charged as a 

conspiracy), all reasonably foreseeable acts and omissions of others 

in furtherance of the jointly undertaken criminal activity, 

that occurred during the commission of the offense of 

conviction, in preparation for that offense, or in the course of 

attempting to avoid detection or responsibility for that offense. . . .

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U.S.S.G. § 1B1.3(a)(1)(A), (B).

The United States Supreme Court has held that “a jury’s verdict of 

acquittal does not prevent the sentencing court from considering conduct 

underlying the acquitted charge, so long as that conduct has been proved by a 

preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157, 

117 S.Ct. 633, 136 L.Ed.2d 554 (1997). See also United States v. Thomas, 690 

F.3d 358, 375 (5th Cir. 2012). 

The commentary to the sentencing guidelines provides that the concepts 

of “common plan or scheme” and “same course of conduct” are closely related:

(A) Common scheme or plan. For two or more offenses to 

constitute part of a common scheme or plan, they must be 

substantially connected to each other by at least one common 

factor, such as common victims, common accomplices, common 

purpose, or similar modus operandi. For example, the conduct of 

five defendants who together defrauded a group of investors by 

computer manipulations that unlawfully transferred funds over an 

eighteen-month period would qualify as a common scheme or plan 

on the basis of any of the above listed factors; i.e., the commonality 

of victims (the same investors were defrauded on an ongoing 

basis), commonality of offenders (the conduct constituted an 

ongoing conspiracy), commonality of purpose (to defraud the group 

of investors), or similarity of modus operandi (the same or similar 

computer manipulations were used to execute the scheme). 

(B) Same course of conduct. Offenses that do not qualify as 

part of a common scheme or plan may nonetheless qualify as part 

of the same course of conduct if they are sufficiently connected or 

related to each other as to warrant the conclusion that they are 

part of a single episode, spree, or ongoing series of offenses. Factors 

that are appropriate to the determination of whether offenses are 

sufficiently connected or related to each other to be considered as 

part of the same course of conduct include the degree of similarity 

of the offenses, the regularity (repetitions) of the offenses, and the 

time interval between the offenses. When one of the above factors 

is absent, a stronger presence of at least one of the other factors is 

required. For example, where the conduct alleged to be relevant is 

relatively remote to the offense of conviction, a stronger showing 

of similarity or regularity is necessary to compensate for the 

absence of temporal proximity. The nature of the offenses may also 

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be a relevant consideration (e.g., a defendant's failure to file tax 

returns in three consecutive years appropriately would be 

considered as part of the same course of conduct because such 

returns are only required at yearly intervals).

U.S.S.G. § 1B1.3, comment 9.

Even similar offenses involving drug distribution are not the “same 

course of conduct” where the necessary factor(s) are not present. See United 

States v. Wall, 180 F.3d 641, 646 (5th Cir. 1999). In drug distribution cases, 

this court has “broadly defined what constitutes the same course of conduct or 

common scheme or plan.” United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 

2009). In Rhine, this court also walks through the analysis to be used in 

determining relevant conduct. Id. at 885-559. As set out previously, “for two 

or more offenses to constitute part of a common scheme or plan, they must be 

substantially connected to each other by at least one common factor, such as 

common victims, common accomplices, common purpose, or similar modus 

operandi.” U.S.S.G. § 1B1.3, comment 9(A). However, “the analysis cannot be 

too broad, otherwise almost any uncharged criminal activity can be painted as 

similar in at least one respect to the charged criminal conduct.” United States 

v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010) (internal marks and citations 

omitted).

Further, as stated previously, the factors to be considered to determine 

whether offenses are part of the same course of conduct include the degree of 

similarity of the offenses, the regularity (repetitions) of the offenses, and the 

time interval between the offenses. U.S.S.G. § 1B1.3, comment 9(B).

Here, Munoz-Vargas pleaded guilty to one count of possession with 

intent to distribute more than 50 grams of methamphetamine (meth) and one 

count of alien in possession of a firearm. The meth was discovered on 

November 15, 2011, during a consent search of an apartment Munoz-Vargas 

shared with his girlfriend. Munoz-Vargas admitted that the 1.3 kilograms of 

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meth and a .40 caliber handgun found in a closet in the apartment were his. 

The “related” conduct involved twelve dismissed counts of possession with 

intent to distribute marijuana and cocaine during the time period of March 8, 

2009, to April 13, 2011. The marijuana and the cocaine were hidden inside

non-factory compartments inside the tires of Chevrolet and/or GMC vehicles 

throughout the United States and involved accomplices other than the 

girlfriend.

The district court may adopt the facts contained in a PSR without further 

inquiry if the facts have an adequate basis with sufficient indicia of reliability 

and the defendant does not rebut the evidence or otherwise demonstrate it is 

unreliable. United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). 

Confronted with an objection to the findings in the PSR, the party seeking an 

adjustment in the base offense level, the Government, must prove by a 

preponderance of the evidence that the adjustment is warranted. See United 

States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992); United States v. Elwood, 

999 F.2d 814, 817 (5th Cir. 1993). However, “[b]ald, conclusionary statements 

do not acquire the patina of reliability by mere inclusion in the PSR.” Elwood, 

999 F.2d at 817-818.

The findings in the PSR do not have an adequate basis with a sufficient 

indicia of reliability. They are merely bald, conclusionary statements that

Munoz-Vargas is accountable for the marijuana equivalent of $565,950, which 

is 492.50 kilograms. The probation officer responded to Munoz-Vargas’ 

objections to the PSR by discussing the consistency of the modus operandi in 

the various marijuana/cocaine counts, with no comparison to the meth count. 

The probation officer then makes the conclusionary statement that, “[b]ased 

on the foregoing evidence, the drug and money seizures linked to MunozVargas and the instant offense were sufficiently connected to each other by at 

least two common factors, that is, similar accomplices and modus operandi. 

Accordingly, the offenses constituted part of a common scheme or plan.” 

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(Emphasis original). Notwithstanding that the findings in the PSR do not 

have an adequate basis with a sufficient indicia of reliability, from a practical 

standpoint, it is impossible to rebut evidence that does not exist. The PSR 

does not establish any accomplices in the meth count similar to the 

marijuana/cocaine counts. The PSR also does not establish any similarity in 

modus operandi between the meth count and the marijuana/cocaine counts. 

The PSR establishes similarity in accomplices and modus operandi between 

the various marijuana and cocaine counts, and then merely makes the bald, 

conclusionary statement that those similarities also apply to the meth count

without any supporting evidence whatsoever. There is no requirement that 

Munoz-Vargas somehow rebut evidence that was not even included in the PSR. 

More importantly, once Munoz-Vargas objected, the Government had the 

burden of proving by a preponderance of the evidence that the adjustment was 

warranted. As indicated by the Government’s response to the objection, it 

failed to do this and merely offered another bald, conclusionary statement. 

Because the district court erred in calculating the base offense level, I would 

reverse on this issue. 

Further, as I would find that the marijuana/cocaine counts were not 

relevant conduct, the two-level sentencing enhancement under Section 3B1.1 

of the Guidelines for being a manager is inapplicable. Without the 

aggravating role adjustment under Section 3B1.1, there can be no two-level 

enhancement under Section 2D1.1(b)(14) of the Guidelines. In both the PSR 

and at the hearing, the Government offered evidence of the importation of 

marijuana and cocaine. There was no evidence offered or allegation made 

regarding the importation of meth. Therefore, the district court’s statement 

that “there is evidence that [Munoz-Vargas] was directly involved in the 

importation of the methamphetamine” is not plausible in view of the record as 

a whole. Thus, I would also reverse on these issues.

Accordingly, I respectfully dissent in part.

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