United States v. Refugio Cano-Pena

976 F.2d 740 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. UNITED STATES of America, Plaintiff-Appellee, v. Refugio CANO-PENA, Defendant-Appellant. No. 92-2065. United States Court of Appeals, Tenth Circuit. Sept. 17, 1992. Before SEYMOUR, STEPHEN H. ANDERSON BALDOCK, Circuit Judges. ORDER AND JUDGMENT* SEYMOUR, Circuit Judge. [1] Defendant Refugio Cano-Pena pled guilty to a charge of possession with intent to distribute less than 50 kilograms of marijuana. He appeals the district court's sentence based on a finding that the marijuana weighed 44.6 pounds, or just over 20 kilograms. [2] The district court must determine by a preponderance of the evidence the amount of drugs involved for purposes of sentencing. See United States v. Molina-Cuartas, 952 F.2d 345, 348 (10th Cir.1991). We must accept those findings unless we determine them to be clearly erroneous. Id. [3] Here, the government proffered evidence that an agent weighed the marijuana on a certified, calibrated scale two days after defendant was arrested, and determined the weight to be 44.6 pounds. Although the same marijuana weighed only slightly over 22 pounds when it was reweighed just three months later, the government put on evidence through a chemist that it is not unusual for marijuana to lose over half its weight through dehydration in that amount of time, given the manner in which it was stored. Although defendant questions the reliability of evidence regarding how much weight marijuana "usually" loses through dehydration, there is no evidence to undermine the accuracy of the original weighing of the marijuana. Under these circumstances, we do not have a definite and firm conviction that the district court erred in finding the weight to be 44.6 pounds. [4] The judgment of the district court is AFFIRMED. The mandate shall issue forthwith. Footnotes [-s] * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3