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. 09-10756

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FREDERICO GONZALEZ, also known as Viejon,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:03-CR-329-13

Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Frederico Gonzalez appeals the sentence of life imprisonment imposed at

resentencing for his conviction for conspiracy to distribute and possess with the

intent to distribute cocaine, cocaine base, marijuana, and MDMA and conspiracy

to transport and attempt to transport monetary instruments from inside the

United States to outside the United States. This court previously vacated

Gonzalez’s sentence and ordered resentencing in light of United States v. Booker,

543 U.S. 200 (2005).

United States Court of Appeals

Fifth Circuit

F I L E D

May 5, 2010

Lyle W. Cayce

Clerk

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No. 09-10756

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Gonzalez argues that the district court erred in applying a sentence

enhancement for possession of a dangerous weapon pursuant to U.S.S.G.

§ 2D1.1(b)(1). He argues that the district court did not find beyond a reasonable

doubt that he possessed a firearm and the court looked to pre-Booker standards

in making its determination. 

Because Gonzalez was resentenced after the decision in Booker, there was

no error in the district court’s finding sentencing factors by a preponderance of

the evidence. See United States v. Stevens, 487 F.3d 232, 246 (5th Cir. 2007);

United States v. Fambro, 526 F.3d 836, 851 & n.96 (5th Cir.), cert. denied, 129

S. Ct. 625 (2008). Additionally, the district court did not look to improper

standards. Based on the type of firearms found at Gonzalez’s residence, the drug

paraphernalia also found at the residence, and the testimony that Gonzalez

trafficked drugs from this same residence, the district court’s determination that

Gonzalez possessed a firearm in connection with his drug-trafficking offense is

plausible in light of the record as a whole and is not clearly erroneous. See

United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006); United States v.

Mitchell, 31 F.3d 271, 277 (5th Cir. 1994). 

Gonzalez also contends the district court’s determination of drug quantity

under U.S.S.G. § 2D1.1 is erroneous because the record supports a finding that

he was responsible for only 145 kilograms of cocaine rather than at least 150

kilograms. The district court should approximate the amount of drugs involved

in an offense when the amount seized does not reflect the scale of the offense.

See § 2D1.1, comment. (n.12). In making this approximation, the district court

may consider any evidence which has “sufficient indicia of reliability.” U.S.S.G

§ 6A1.3, comment.; United States v. Manthei, 913 F.2d 1130, 1138 (5th Cir.

1990). The district court properly approximated the amount of drugs

attributable to Gonzalez from the Presentence Report and the testimony of

Special Agent Aziz, both of which are sufficiently reliable. Although the exact

numbers from Special Agent Aziz’s testimony totaled 145 kilograms, his

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testimony indicated that Gonzalez was responsible for a greater amount. Special

Agent Aziz explained that individuals were observed making several drug

deliveries to Gonzalez’s residence. Though the exact quantities of these

deliveries were not determined by his testimony, the district court’s

determination that the additional amount was more than five kilograms of

cocaine was plausible in light of the record as a whole and therefore not clearly

erroneous. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).

Gonzalez argues that his total offense level was miscalculated by the

district court because the court applied enhancements under U.S.S.G. § 2S1.1

based on his money laundering conviction. The record does not support

Gonzalez’s argument. Though the court initially improperly stated that

Gonzalez’s offense level was enhanced under § 2S1.1, the record reflects that the

court was corrected and properly calculated Gonzalez’s total offense level at 44.

Moreover, the Supplement to the Presentence Report also properly calculates

Gonzalez’s offense level. 

Gonzalez contends that his within-guidelines sentence is substantively

unreasonable. He argues that his codefendants received sentences of 30 years

or less. Because Gonzalez does not show that his codefendants were similarly

situated, he fails to establish that his sentence is unreasonable due to a disparity

between his sentence and his codefendants’ sentences. See United States v.

Candia, 454 F.3d 468, 476 (5th Cir. 2006). Additionally, the district court

considered Gonzalez’s arguments and determined that the factors of 18 U.S.C.

§ 3553(a) did not warrant a sentence outside the guidelines range. There is no

indication that the district court abused its discretion in weighing the § 3553(a)

factors or that Gonzalez’s sentence is substantively unreasonable. See Gall v.

United States, 552 U.S. 38, 51 (2007); United States v. Campos-Maldonado, 531

F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). 

Accordingly, the judgment of the district court is AFFIRMED. 

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