USA v. Ruben Guajardo

Filing

USA v. Ruben Guajardo

Doc. 0

Case: 09-10708

Document: 00511207251

Page: 1

Date Filed: 08/18/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10708 S u m m a r y Calendar August 18, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R U B E N GUAJARDO, also known as Guerro G., D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:08-CR-98-11

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Ruben Guajardo appeals the sentence imposed fo llo w in g his guilty plea conviction for conspiracy to possess with intent to d is t r ib u t e Schedule II controlled substances (more than 5 kilograms of cocaine a n d 500 grams of a mixture of methamphetamine), in violation of 21 U.S.C. §§ 8 4 1 and 846.1 Guajardo was sentenced to the mandatory minimum sentence 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. On appeal, Guajardo does not raise any issues concerning the sentences imposed for his guilty plea convictions for three counts of unlawful use of a communication facility to
1

*

Dockets.Justia.com

Case: 09-10708

Document: 00511207251 Page: 2 No. 09-10708

Date Filed: 08/18/2010

1 0 years under 21. U.S.C. § 841(b)(1)(A). After imposing that penalty, the d is t r ic t court stated that, even if the 10-year minimum penalty were not a p p lic a b le , it would have imposed the same term of imprisonment. Guajardo first contends that the district court erred by finding the 10-year m a n d a t o r y minimum penalty of § 841(b)(1)(A) applicable. Guajardo is correct. For sentencing purposes, a defendant is accountable only for the drug quantity " w it h which he was directly involved, and all reasonably foreseeable quantities o f marijuana" within the scope of the joint criminal activity. See U.S.S.G. § 1B1.3, comment. (n.2). The presentence report, which was adopted by the d is t r ic t court, determined that the drug quantity attributable to Guajardo was t h e equivalent of 300.51 kilograms of marijuana. That is less than the threshold q u a n t it y (1,000 kilograms of marijuana) necessary for triggering the 10-year s t a t u t o r y minimum penalty. Thus, the 10-year mandatory minimum penalty of § 841(b)(1)(A) was not applicable. See id. G u a ja r d o next insists that the district court's alternative upward d e p a r t u r e sentence of 120 months of imprisonment pursuant to U.S.S.G. § 4A1.3 is unreasonable. Although sentencing decisions are generally reviewed for abuse o f discretion, see Gall v. United States, 128 S. Ct. 586, 594-96 (2007), plain error r e v ie w applies here because Guajardo did not preserve this issue for appeal. United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009) (citing United S ta te s v. Hernandez-Martinez, 485 F.3d 270, 272-73 & n.1 (5th Cir. 2007); United S ta te s v. Peltier, 505 F.3d 289, 390-92 (5th Cir. 2007)). To succeed on plain error review, Guajardo must show a forfeited error t h a t is clear or obvious and that affects his substantial rights. Puckett v. United S ta te s , 129 S. Ct. 1423, 1429 (2009). Then, if Guajardo succeeds in making such a showing, we only have the discretion to correct the error if it seriously affects t h e fairness, integrity, or public reputation of judicial proceedings. Id.

facilitate a drug felony.

2

Case: 09-10708

Document: 00511207251 Page: 3 No. 09-10708

Date Filed: 08/18/2010

G u a ja r d o has not shown that the district court clearly erred when deciding t o upwardly depart pursuant to § 4A1.3. After reviewing Guajardo's criminal h is t o r y and considering an advisory sentencing guidelines range of 84 to 105 m o n th s of imprisonment, the district court stated that an upward departure u n d e r § 4A1.3 was necessary because of the "inadequacy" of Guajardo's criminal h is t o r y category of IV and Guajardo's history of violence. The district court also s t a t e d that a sentence of 120 months of imprisonment was the most appropriate a n d reasonable sentence in Guajardo's case and was "necessary to achieve the C o u r t 's sentencing objectives of punishment, deterrence, and protection of the p u b lic ." Given Guajardo's long and violent criminal history, the district court did c le a r ly err when it made an upward departure pursuant to § 4A1.3. See United S ta te s v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.2006). N e it h e r has Guajardo shown that the district court erred in determining t h e extent of the departure. Following the direction of § 4A1.3(a)(4)(A), the d is t r ic t court moved incrementally across the sentencing table to the next higher c r im in a l history category of V, which has an advisory sentencing guidelines r a n g e of 100 to 125 months of imprisonment. The district court imposed a

s e n te n c e of 120 months of imprisonment, within category V's range and 15 m o n th s greater than the high-end of the guidelines sentence range applicable in t h e absence of the upward departure. U.S.S.G., Ch. 5, Pt. A, Sentencing Table. Given Guajardo's extensive and violent criminal record, he has not shown that t h e extent of the departure was clearly erroneous or that the sentence was u n r e a s o n a b le . See Zuniga-Peralta, 442 F.3d at 346-48; United States v. Lee, 358 F .3 d 315, 328-29 (5th Cir. 2004); United States v. McKenzie, 991 F.2d 203, 205 n .7 , 206 n.8 (5th Cir. 1993). F u r t h e r m o r e , Guajardo's assertion that the district court improperly r e lie d on factors already incorporated by the Guidelines is meritless. The

d is t r ic t court is "free to conclude that the applicable Guidelines range gives too m u c h or too little weight to one or more factors, either as applied in a particular 3

Case: 09-10708

Document: 00511207251 Page: 4 No. 09-10708

Date Filed: 08/18/2010

c a s e or as a matter of policy." United States v. Williams, 517 F.3d 801, 809 (5th C ir . 2008); United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). Moreover, Guajardo's claim that some of his prior convictions were double cou n t e d , also meritless. See United States v. Mondragon-Santiago, 564 F.3d 357, 3 6 6 -6 7 (5th Cir. 2009); United States v. Campos-Maldonado, 531 F.3d 337 (5th C ir . 2008); United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001) (noting that d o u b le -c o u n t in g is not generally prohibited but must be expressly forbidden by t h e particular guideline at issue). AFFIRMED.

4