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. 08-40933

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICARDO CERVANTES VILLEGAS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:06-CR-1089-3

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Ricardo Cervantes Villegas challenges his sentence following his guilty

plea conviction on one count of conspiracy to possess with intent to distribute

more than five kilograms of cocaine and more than 100 but less than 1,000

kilograms of marijuana and using and carrying a firearm during a drug

trafficking crime, and on one count of unlawful use and carrying of a firearm

during a drug trafficking crime. See 18 U.S.C. § 924(c); 21 U.S.C. §§ 841, 846.

Specifically, he argues that the district court erred when it adopted the

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2009

Charles R. Fulbruge III

Clerk
No. 08-40933

2

presentence report (PSR) that attributed 15.42 kilograms of unseized

methamphetamine to him to determine his base offense level for the calculation

of an advisory range sentence under the sentencing guidelines. Villegas asserts

that the evidence regarding the amount of methamphetamine involved in the

conspiracy did not support the court’s conclusion that a home invasion by

Villegas and his co-conspirators resulted in the theft of 34 bags of

methamphetamine; that each of the 34 bags was the same size, weight, and

purity; that each bag of the methamphetamine had an approximate value of

$10,000; and that each bag weighed approximately one pound (.454 kilograms).

In determining the quantity of methamphetamine taken in the home

invasion, the probation officer preparing the presentence report relied upon

reports prepared in the investigation of the conspiracy. Before sentencing, the

Government provided the district court and Villegas with copies of the debriefing

reports from investigator interviews with co-conspirators. The facts set forth in

the debriefing reports support the district court’s findings regarding the number

of bags, their consistent size and weight, and their approximate value. See

United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). Villegas’s coconspirators told investigators that they took an estimated 34 packets of

methamphetamine during a home invasion. Each member received two to three

packets for his participation. A co-conspirator sold the packets and returned the

profits to the others for their participation in the home invasion. One member

received three packets of methamphetamine for his participation, which his coconspirator sold, and for which the co-conspirator returned $30,000. A drug

enforcement agent indicated that, in his two years of experience, he had bought

pound quantities of methamphetamine for approximately $9,500-$13,000. From

this information, the district court extrapolated the quantity of unseized

methamphetamine from the information in the reports. See id. at 246-49

(approving the use of extrapolation to estimate the attributable quantity of

narcotics); see also Anderson v. City of Bessemer, 470 U.S. 564, 570 (1985) (noting
No. 08-40933

3

that where there are “two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.”). In light of the evidence, the

district court’s conclusion regarding the quantity of methamphetamine is

plausible.

Villegas adduced no testimony or other evidence at sentencing to counter

the facts stated in the PSR. See United States v. Smith, 528 F.3d 423, 425 (5th

Cir. 2008). His conclusory assertions that the evidence was unreliable does not

demonstrate that the information contained in the PSR was materially untrue.

See id. Accordingly, we AFFIRM the decision of the district court.