Case: 11-41328     Document: 00512042106         Page: 1     Date Filed: 11/02/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 2, 2012
                                     No. 11-41328
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

ARTEMIO LOMAS

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:11-CR-770-2


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        A jury convicted Artemio Lomas of one count of conspiracy to possess with
intent to distribute 1,000 kilograms or more of marijuana in violation of 21
U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) and two counts of possession with intent
to distribute 100 kilograms or more of marijuana in violation of § 841(a)(1),
(b)(1)(B). The district court sentenced Lomas to three concurrent terms of 151
months in prison. Lomas argues for the first time on appeal that the district



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-41328    Document: 00512042106      Page: 2   Date Filed: 11/02/2012

                                  No. 11-41328

court erred in calculating the drug quantity attributable to him under the
Sentencing Guidelines by using the gross weight rather than the net weight.
      Because Lomas did not object in the district court to the drug quantity
attributed to him, our review is for plain error. United States v. Conn, 

, 284 (5th Cir. 2011); United States v. Sparks, 

, 589 (5th Cir. 1993).
Simply put, Lomas has not demonstrated that the court used the gross weight
rather than the net weight. Neither the trial testimony nor the presentence
report (PSR) referenced either gross weight or net weight. Furthermore, the
district court was entitled to rely on the jury’s finding that Lomas conspired to
possess with intent to distribute 1000 kilograms or more of marijuana and
Lomas’s admission that the facts in the PSR were correct. See United States v.
Arnold, 

, 362 (5th Cir. 2005); United States v. Ramirez, 

, 204 (5th Cir. 2009). In light of the trial testimony, the jury’s finding, and
Lomas’s admission, Lomas has not show that the district court committed any
error, and certainly not clear or obvious error, when it relied on the drug
quantity indicated in the PSR. See United States v. Rodriguez, 

, 363
(5th Cir. 2010).
      AFFIRMED.




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