United States v. Almodovar-Olivas

Court Case Details
Court Case Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2009

No. 08-50754

Summary Calendar

Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JESUS ALMODOVAR-OLIVAS,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:08-CR-70-3

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.

*

PER CURIAM:

Jesus Almodovar-Olivas was convicted of one count of aiding and abetting

possession of marijuana with intent to distribute. The district court sentenced

him to serve 46 months in prison and a five-year term of supervised release. In

this appeal, Almodovar-Olivas argues that his sentence should have been based

solely on the marijuana that he knew to be involved with his offense. He

maintains that he had no knowledge of the methamphetamine that was also

*

Pursuant to 5

C

.

R.

47.5, the court has determined that this opinion

TH

IR

should not be published and is not precedent except under the limited
circumstances set forth in 5

C

.

R.

47.5.4.

TH

IR

No. 08-50754

involved with his offense, and he argues he should not have been held

responsible for the methamphetamine at sentencing because he was unaware of

it and had not agreed to be involved with it. We conduct a de novo review of the

district court’s application and interpretation of the Sentencing Guidelines, and

its factual findings are reviewed for clear error. See United States v. Cisneros-

Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Almodovar-Olivas has shown no error in connection with his sentence. A

defendant need not have knowledge of the type of drug he is carrying in order for

the drug to be used in the calculation of his sentence. United States v. Gamez-

Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003); United States v. Valencia-Gonzales,

172 F.3d 344, 345-46 (5th Cir. 1999). Almodovar-Olivas’s arguments to the

contrary are unavailing.

The judgment of the district court is AFFIRMED.

2