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    United States v. Refugio Cano-Pena, 976 F.2d 740, 10th Cir. (1992)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's sentence of the defendant based on the amount of marijuana involved. The district court found, by a preponderance of the evidence, that the amount of marijuana weighed 44.6 pounds, or just over 20 kilograms. The government presented evidence that the marijuana was weighed on a certified scale two days after the defendant's arrest. Although the marijuana weighed less when reweighed three months later, the government provided testimony that it is common for marijuana to lose over half its weight through dehydration when stored in the manner of this case. The appellate court held that there was no evidence undermining the accuracy of the original weighing and therefore no clear error

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    United States v. Refugio Cano-Pena, 976 F.2d 740, 10th Cir. (1992)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's sentence of the defendant based on the amount of marijuana involved. The district court found, by a preponderance of the evidence, that the amount of marijuana weighed 44.6 pounds, or just over 20 kilograms. The government presented evidence that the marijuana was weighed on a certified scale two days after the defendant's arrest. Although the marijuana weighed less when reweighed three months later, the government provided testimony that it is common for marijuana to lose over half its weight through dehydration when stored in the manner of this case. The appellate court held that there was no evidence undermining the accuracy of the original weighing and therefore no clear error

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    Filed: 1992-09-17 Precedential Status: Precedential Citations: 976 F.2d 740 Docket: 92-2065

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's sentence of the defendant based on the amount of marijuana involved. The district court found, by a preponderance of the evidence, that the amount of marijuana weighed 44.6 pounds, or just over 20 kilograms. The government presented evidence that the marijuana was weighed on a certified scale two days after the defendant's arrest. Although the marijuana weighed less when reweighed three months later, the government provided testimony that it is common for marijuana to lose over half its weight through dehydration when stored in the manner of this case. The appellate court held that there was no evidence undermining the accuracy of the original weighing and therefore no clear error

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    United States v. Refugio Cano-Pena, 976 F.2d 740, 10th Cir. (1992)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's sentence of the defendant based on the amount of marijuana involved. The district court found, by a preponderance of the evidence, that the amount of marijuana weighed 44.6 pounds, or just over 20 kilograms. The government presented evidence that the marijuana was weighed on a certified scale two days after the defendant's arrest. Although the marijuana weighed less when reweighed three months later, the government provided testimony that it is common for marijuana to lose over half its weight through dehydration when stored in the manner of this case. The appellate court held that there was no evidence undermining the accuracy of the original weighing and therefore no clear error

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    of 2

    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.

    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.

    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.

    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.

    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

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