United States v. Salazar

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 9, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40916
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID DANIEL SALAZAR,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-87-CR-28-ALL
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Daniel Salazar (“Salazar”) appeals the sentence
imposed following his guilty-plea convictions for conspiracy to
possess with intent to distribute more than 100 pounds of
marijuana and aiding and abetting the possession with intent to
distribute over 100 pounds of marijuana. Salazar argues that he
should not have been attributed with 610 pounds of marijuana at
sentencing because the district court clearly erred by finding

-- 1 of 2 --

No. 03-40916
-2-
that he was reasonably capable of purchasing or brokering the
purchase of that amount of marijuana.
Given the evidence at sentencing regarding the purchase of
marijuana made by Salazar’s co-conspirator, the statements made
by Salazar to the undercover agent of the Drug Enforcement
Agency, and the cash found in the motels rooms of Salazar and his
co-conspirator after they were arrested, the district court’s
finding that Salazar was reasonably capable of purchasing or
brokering the purchase of 610 pounds of marijuana was not clearly
erroneous. See United States v. Mergerson, 4 F.3d 337, 346 (5th
Cir. 1993). In rejecting Salazar’s statements that he was not
capable of purchasing or brokering the purchase of 610 pounds of
marijuana, the district court made a credibility determination
that is “peculiarly within the province of the trier-of-fact”
that we will not disturb on appeal. United States v. Sarasti,
869 F.2d 805, 807 (5th Cir. 1989). Accordingly, Salazar’s
sentence is AFFIRMED.

-- 2 of 2 --