IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11585 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS JOSE ORDUNO, also known as Jesse Orduno,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 7:00-CR-12-2

October 21, 2002

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

Jesus Jose Orduno appeals his guilty-plea conviction and

sentence for: (1) conspiring to distribute, and to possess with the

intent to distribute, more than 100 kilograms of marihuana, in

violation of

, and (2) possessing with the intent to

distribute, and aiding and abetting possession with the intent to

distribute, more than 100 kilograms of marihuana, in violation of

* 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 R.47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

(a)(1), (b)(1)(B) and

.

Orduno first contends that

(b) is facially

unconstitutional in light of Apprendi v. New Jersey,

(2000). This argument is foreclosed by circuit precedent. See

Unites States v. Slaughter,

, 582 (5th Cir. 2000),

cert. denied,

(2001); United States v. Fort,

(5th Cir.), cert. denied,

(2001).

Orduno next asserts that his sentence was unconstitutional

under Apprendi because the applicable guideline sentencing range

was increased based on facts (obstruction of justice, being an

organizer or leader in the offense, and amount by which the

marihuana involved exceeded 100 kilograms) not alleged in the

indictment or proved beyond a reasonable doubt. The record shows

that Orduno’s sentence did not exceed the statutory maximum

applicable to the offenses alleged in his indictment. See

(b)(1)(B)(vii), 846;

, 3559(a)(2),

3571(b)(1) and (3), 3583(b)(1). The indictment allegation of “in

excess of 100 kilograms or more of . . . marihuana” sufficed to

invoke the 40 year maximum of section 841(b)(1)(B)(vii). United

States v. Moreci,

(5th Cir. 2002). Apprendi does

not apply to sentence enhancements that do not yield a sentence

beyond the statutory maximum. See United States v. Keith,

(5th Cir. 2000), cert. denied,

(2001);

United States v. Doggett,

(5th Cir. 2000), cert.

2 denied,

(2001). Orduno’s Apprendi argument is

therefore without merit.

Finally, Orduno argues that there was an insufficient factual

basis to attribute 6,189.37 kilograms of marihuana to him for

sentencing purposes. We cannot say, however, that the district

court clearly erred in determining the drug quantity, as the

determination was plausible in light of the record as a whole. See

United States v. Ramirez,

(5th Cir. 2001); United

States v. Lowder,

(5th Cir. 1998).

“As a defendant challenging the findings of the PSR, [Orduno]

bears the burden of showing that the information in the PSR ‘cannot

be relied on because it is materially untrue, inaccurate, or

unreliable.’” United States v. Londono,

(5th Cir.

2002). As part of the agreed factual resume, the parties

stipulated that “on at least eight occasions,” Orduno transported

quantities of marihuana in moving boxes surrounded by recently

purchased furniture and located in rented moving trucks and that,

on one such occasion, 900 pounds of marihuana were involved. At

sentencing, Federal Bureau of Investigation Special Agent Jerry Nau

testified that based on his extensive analysis of cell phone

records, moving truck rentals, furniture purchases, and information

obtained from co-defendants and other sources, he was able to

determine that Orduno made seventeen trips to transport marihuana

and that all but two involved approximately 1,000 pounds of

3 marihuana. Orduno’s testimony claiming responsibility for a lesser

quantity of drugs was insufficient to require the district court to

conclude that Agent Nau’s testimony was materially untrue,

inaccurate, or unreliable. See United States v. Angulo,

(5th Cir. 1991).

Furthermore, there is no merit to Orduno’s suggestion that a

district court should not extrapolate from concrete evidence to

estimate a drug quantity. In United States v. Cabrera,

(5th Cir. 2002), this court approved the use of a

“multiplier” estimate, in which a known quantity involved in a

particular occurrence is extrapolated to other occurrences, to make

a sentencing determination regarding the number of immigrants

smuggled on various trips. As in Cabrera,

, the

evidence adduced in the instant case shows that the multiplier

estimate was reasonably representative of the amount of marihuana

sought to be determined.

The judgment of the district court is AFFIRMED.

4