USA v. Uriel Palacios

Filing

UNPUBLISHED OPINION FILED. [09-11153 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/10/2010 for Appellant Uriel Palacios [09-11153]

USA v. Uriel Palacios ase: 09-11153 C

Document: 00511299931 Page: 1 Date Filed: 11/19/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11153 S u m m a r y Calendar November 19, 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. U R I E L PALACIOS, also known as Youngster, 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. 3:08-CR-267-4

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* U r ie l Palacios appeals the sentence imposed for his guilty plea convictions fo r money laundering and conspiring to possess with intent to distribute and to d is t r ib u t e more than five kilograms of cocaine. 18 U.S.C. § 1956(a)(1)(A)(i), (h); 2 1 U.S.C. §§ 841(a)(1), 846. Palacios was sentenced to concurrent terms of 2 4 0 months of imprisonment and three years of supervised release for the m o n e y laundering conviction and 360 months of imprisonment and five years 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-11153 Document: 00511299931 Page: 2 Date Filed: 11/19/2010 No. 09-11153 s u p e r v is e d release for the conspiracy conviction. The district court ordered that t h e federal sentence run consecutively to yet-to-be imposed state sentences. P a la c io s contends that the district court erred in applying U.S.S.G. § 2S1.1(a)(1) to calculate his offense level because conspiratorial liability cannot fo r m the basis of the cross-reference. In addition, Palacios argues that the crossr e fe r e n c e did not apply because there was no evidence that he laundered the p r o c e e d s of drug transactions in which he personally participated. The

o b je c t io n s Palacios raised in the district court would not have alerted the court t o this claim of error. Cf. United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (" T o preserve error, an objection must be sufficiently specific to alert the district c o u r t to the nature of the alleged error and to provide an opportunity for c o r r e c t io n ." ). Therefore, review is for plain error. T o show plain error, Palacios must show that the forfeited error is clear or o b v io u s and affects his substantial rights. See Puckett v. United States, 129 S . Ct. 1423, 1429 (2009). If Palacios makes such a showing, we have the

d is c r e t io n to correct the error but only if it "`seriously affect[s] the fairness, in t e g r it y , or public reputation of judicial proceedings.'" Id. (alteration in

o r ig in a l) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). We need not d e c id e whether the district court erred in applying the cross-reference in § 2S1.1(a)(1) because any such error would not have been clear or obvious. See U n ite d States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009), cert. denied, 2010 WL 3 9 0 7 2 1 (June 21, 2010) (No. 09-8939); see also United States v. Jackson, 549 F.3d 9 6 3 , 977 (5th Cir. 2008), cert. denied, 130 S. Ct. 51 (2009). P a la c io s also contends that the district court erred in attributing the full a m o u n t of the currency seized to him for purposes of calculating his offense level. T h e objections on which Palacios relies would not have alerted the district court t o his argument that there was insufficient evidence he provided all of the c u r r e n c y seized. Cf. Neal, 578 F.3d at 272-73. Therefore, review is for plain error. 2

Case: 09-11153 Document: 00511299931 Page: 3 Date Filed: 11/19/2010 No. 09-11153 A s a question of fact that was capable of resolution by the district court u p o n proper objection, the district court's finding that Palacios was accountable fo r all the currency seized cannot constitute plain error. See United States v. L o p e z , 923 F.2d 47, 50 (5th Cir. 1991). Even if this issue was susceptible to plain e r r o r , the district court was entitled to rely on the findings of the PSR, and P a la c io s has failed to show error, plain or otherwise, in this regard. See United S ta te s v. Ford, 558 F.3d 371, 377 (5th Cir. 2009). P a la c io s raises three additional arguments, which he acknowledges are fo r e c lo s e d by our precedent, to preserve for further review. Palacios contends t h a t the Government was not authorized under § 3E1.1(b) to decline to move for a n additional one-level reduction for acceptance of responsibility because he r e fu s e d to waive his appellate rights. Therefore, Palacios argues that the district c o u r t erred by failing to grant him the additional one-level reduction. In United S ta te s v. Newson, we held that a district court may not award a reduction p u r s u a n t to § 3E1.1(b) absent a motion from the Government and that the G o v e r n m e n t may decline to make such a motion if the defendant refuses to w a iv e his right to appeal. 515 F.3d 374, 377-79 (5th Cir. 2008). Palacios also c o n t e n d s that the district court violated his Sixth Amendment rights because fa c t s essential to determining the sentence were not alleged in the indictment, p r o v e d to a jury beyond a reasonable doubt, or admitted by him. We have c o n s is t e n t ly rejected this claim. See United States v. Rhine, 583 F.3d 878, 891 n .5 0 (5th Cir. 2009)(listing cases). Finally, Palacios contends that the district c o u r t erred in ordering his sentence to run consecutively to yet-to-be imposed s t a t e sentences. We rejected this claim in United States v. Brown, 920 F.2d 1 2 1 2 , 1217 (5th Cir. 1991), overruled on other grounds by United States v. C a n d ia , 454 F.3d 468, 472-73 (5th Cir. 2006), which remains binding precedent in this circuit. See United States v. Setser, 607 F.3d 128, 131-32 (5th Cir. 2010). T h e judgment of the district court is AFFIRMED.

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