United States v. Arambul

* 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that this opinion should not be published and is not precedent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
November 26, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40862
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO JESUS ARAMBUL; ABELARDO ANDAVERDE-GONZALEZ
aka Abelardo De Verde-Gonzalez,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-5-4
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Rolando Jesus Arambul and Abelardo Andaverde-Gonzalez were
convicted of conspiracy to possess with intent to distribute more
than 1,000 kilograms of marijuana, and with aiding and abetting
possession with intent to distribute 3,961.4 kilograms of
marijuana, all in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(A); 18 U.S.C. § 2. Arambul was sentenced to 210 months in
prison and a five-year term of supervised release. Andaverde was
sentenced to 168 months of imprisonment and a five-year term of

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No. 02-40862
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supervised release. Both Arambul and Andaverde filed timely
notices of appeal.
Arambul argues only that 21 U.S.C. § 841 is facially
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000), because the statute’s structure treats drug types and
quantities as sentencing factors. Arambul concedes that his
argument is foreclosed by United States v. Slaughter, 238 F.3d 580,
582 (5th Cir. 2000), but he raises the issue in order to preserve
it for possible Supreme Court review.
Andaverde argues that there was insufficient evidence to
support his convictions. There was evidence that Andaverde helped
to unload a U-Haul truck full of marijuana into a vacant stash
house and that the marijuana was stacked floor to ceiling and wall
to wall in a bedroom. There was also evidence that Andaverde
helped to unpackage some of the marijuana from the nylon flour
sacks in which it was contained and that, of all the participants
arrested, Andaverde’s clothes were the dirtiest from the white
flour from the nylon sacks. Viewing this evidence in the light
most favorable to the verdict, there was sufficient evidence to
support Andaverde’s convictions. See United States v. Alix, 86
F.3d 429, 436 (5th Cir. 1996); United States v. Lopez,74 F.3d 575,
577 (5th Cir. 1996); United States v. Fierro, 38 F.3d 761, 768 (5th
Cir. 1994); United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.
1994); United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992).

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No. 02-40862
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Andaverde also argues that the district court erred
in refusing to assign him a mitigating role in the offense.
However, Andaverde has not met his burden of showing that the
district court clearly erred in determining that he did not play a
minor or minimal role in the offense. See United States v. Zuniga,
18 F.3d 1254, 1261 (5th Cir. 1994); United States
v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir. 1989).
AFFIRMED.

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