* This case is being decided by a quorum. See 28 U.S.C. § 46(d).

** 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. 07-40328

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JESUS ALVAREZ-SALINAS

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:06-CR-785

Before GARZA and DENNIS, Circuit Judges.*

PER CURIAM:**

Jesus Alvarez-Salinas (“Alvarez”) appeals the district court’s mandatory

minimum sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(B). Alvarez

contends that the district court erred in attributing greater than 100 kilograms

of marijuana to him for sentencing purposes. For the following reasons, we

affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-40328

2

I

In May 2006, United States Border Patrol agents observed several

unknown individuals emerging from the banks ofthe Rio Grande River carrying

large bundles. The Border Patrol agents confronted the individuals, who then

ran back towards the river with their bundles. Alvarez was seen carrying one

of the bundles and attempted to escape with the other individuals when the

Border Patrol Agents arrived. Agents caught Alvarez; but the other individuals

eluded capture and swam back to Mexico. At the scene, agents recovered five

bundles which contained marijuana weighing, in the aggregate, 132.5 kilograms.

Based on the above facts, the government charged Alvarez with a twocountindictment. Pursuant to a plea agreement, Alvarez pleaded guilty to count

two of the indictment and count one was dismissed. Count two provided that

Alvarez “did knowingly and intentionally possess with intent to distribute a

controlled substance. This violation involved a quantity in excess of 100

kilograms of marihuana . . . [i]n violation of Title 21, United States Code,

Sections 841(a)(1) and 841(b)(1)(B) and Title 18, United States Code, Section 2.”

In pleading guilty to this count, Alvarez admitted to being a principal, as well

as aiding and abetting the possession of 100 kilograms or more of marijuana.

The facts in the preceding paragraph make up the factual basis for Alvarez’s

guilty plea. Alvarez stipulated to these facts and did not challenge the factual

basis for his plea.

Pursuant to 21 U.S.C. § 851 and 28 U.S.C. § 994(h), the Government filed

an information of prior conviction to notify Alvarez that he was subject to a

sentencing enhancement under § 841(b) based upon a prior felony conviction for

possession with intent to distribute marijuana. Alvarez stipulated to his prior

conviction. 

Alvarez’s plea agreement indicated that his pleading guilty to a violation

of § 841(a) involving greater than 100 kilograms of marijuana, coupled with his
No. 07-40328

1

21 U.S.C. § 841(a) makes it illegal to possess with the intent to distribute a controlled

substance. Section 841(b)(1)(B) provides:

In the case of a violation of subsection (a) of this section involving . . . 

(vii) 100 kilograms or more of a mixture or substance containing a detectable amount

of marijuana . . . 

such person shall be sentenced to a term of imprisonment which may not be less than 5 years

and not more than 40 years . . . [but] [i]f any person commits such a violation after a prior

conviction for a felony drug offense has become final, such person shall be sentenced to a term

of imprisonment which may not be less than 10 years and not more than life imprisonment.

3

prior conviction,triggered a statutory mandatory minimum sentence of 10 years.

See 21 U.S.C. § 841(b)(1)(B).1 Section 841(b)(1)(B) also mandated an eight-year

term of supervised release. 

At rearraignment, Alvarez again admitted his prior drug conviction. The

district court twice indicated to Alvarez that his stipulation to the prior

conviction would enhance his minimum sentence from five years to ten years

under § 841(b)(1)(B). Also, Alvarez agreed with the district court’s recitation of

the facts that made up the basis for his plea, including the fact that the quantity

of marijuana involved was “roughly 132 [kilograms].” Alvarez raised no

objections at rearraignment.

The pre-sentence investigation report (“PSR”) assessed a based offense

level of 26 pursuant to United States Sentencing Guidelines Manual (“USSG”)

§ 2D1.1(c)(7) (2005), attributing 132.5 kilograms of marijuana to Alvarez. Since

there were no adjustments, Alvarez’s total offense level was 26. Coupled with

Alvarez’s criminal history score of II,the Guidelines’ range of imprisonment was

70-87 months. However, because the applicable mandatory minimums were

greater than the Guidelines range, the mandatory minimums became the

applicable Guidelines sentence. See USSG §§ 5G1.1(b) & 5D1.2(c). Alvarez

raised no objection to the PSR.

At the sentencing hearing, after again admitting to his prior drug

conviction, Alvarez stated, “I thought that I was going to be judged for the

amount I was carrying, but I wasn’t thinking that I was going to be judged for
No. 07-40328

2 Alvarez also challenges the constitutional rule announced in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), that the fact of a prior conviction used to enhance a sentence need not be

submitted to a jury or found beyond a reasonable doubt. We have recognized that such challenges are

foreclosed by Almendarez-Torres. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.

2007), petition for cert filed (Aug. 28, 2007) (No. 07-6202). 

4

the whole load.” The district court stated that Alvarez should not be surprised

at this point because the count to which he pleaded alleged that his offense

involved more than 100 kilograms, the plea agreement stated that Alvarez was

facing a 10-year mandatory minimum, and the court had gone over the factual

basis for his plea and advised him of the statutory penalties at rearraignment.

The district court then explained, “that if two or three people get together and

they’re working together and they’re crossing over and they each have a bag

. . . they’re all liable for the whole. Because after all, it is one idea; the idea is to

getthese bundles across the river, working together.” The district court adopted

the PSR and attributed 132.5 kilograms of marijuana to Alvarez for sentencing

purposes. The district court sentenced Alvarez to the mandatory minimums

under § 841(b)(1)(B) of 120 months’ imprisonment and eight years’ supervised

release. Aside from the above statement, Alvarez raised no objections at

sentencing.

II

On appeal, Alvarez challenges the drug quantity attributed to him for

sentencing purposes.2 He contends that the district court erred by attributing

132.5 kilograms or the “whole load”to him, and thatfor purposes of determining

the appropriate statutory penalty under § 841(b), a defendant may only be

sentenced based on the drugs personally possessed by him, in this case, the

single bundle that Alvarez carried across the border. To support his argument,

Alvarez cites authorities instructing district courts to determine statutory drug

quantities based solely on the defendant’s offense conduct, as opposed to

utilizing Guidelines concepts such as relevant conduct. See United States v.
No. 07-40328

5

Mergerson, 4 F.3d 337, 345-46 (5th Cir. 1993); United States v. Santos, 195 F.3d

549, 551 (10th Cir. 1999), abrogated on other grounds by United States v. Jones,

235 F.3d 1231, 1237 (10th Cir. 2000).

The above authorities are not inconsistent with Alvarez’s sentence. The

drugs attributed to Alvarez were not based on relevant conduct, but on the

offense to which Alvarez pleaded guilty: namely a violation of § 841(a) whereby

he possessed or aided and abetted possession of greater than 100 kilograms of

marijuana. The factual basis to which he stipulated showed that 132.5

kilograms were involved in his offense, that Alvarez was part of a group of

individuals that crossed the Rio Grande together with similar bundles of

marijuana, and that they all attempted to flee together. Based on the count to

which Alvarez pleaded guilty, the facts to which he stipulated, and his

admissions at rearraignment, Alvarez sealed his fate with respect to the

statutory penalties under § 841(b). The district court did not have discretion at

sentencing to find new facts in order to undo Alvarez’s admissions or avoid

application of the mandatory minimum. In sum, the offense to which Alvarez

pleaded guilty and his stipulation regarding his prior drug conviction mandated

application of the 10-year minimum under § 841(b)(1)(B).

For the foregoing reasons, we AFFIRM the district court’s sentence.