USA v. Zuniga

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USA v. Zuniga

Doc. 0

Case: 09-40009

Document: 00511181814

Page: 1

Date Filed: 07/22/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United StateshCourt of Appeals Fift Circuit FILED
N o . 09-40009 S u m m a r y Calendar July 22, 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 E Y N A L D O ZUNIGA, 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 Southern District of Texas U S D C No. 7:08-CR-894-1

B e fo r e REAVLEY, DAVIS, and HAYNES, Circuit Judges. P E R CURIAM:* R e y n a ld o Zuniga pleaded guilty to conspiring to possess with intent t o distribute five or more kilograms of cocaine. See 21 U.S.C. §§ 846, 841(a) a n d (b)(1)(A). He appeals his sentence of 87 months of imprisonment. Zuniga asserts that the district court abused its discretion when it refused h is request that it decrease his offense level on the basis that he was a m in im a l participant or, alternatively, a minor participant in the conspiracy.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40009

Document: 00511181814 Page: 2 No. 09-40009

Date Filed: 07/22/2010

A c c o r d in g to the factual basis presented by the Government at r e a r r a ig n m e n t , Zuniga, an agent employed by the United States Customs and B o r d e r Protection Service, picked up Jose Luis Arteaga-Echazarreta (Arteaga), o n e of his co-conspirators, near the Texas-Mexico border on the day of the o ffe n s e . Arteaga was carrying a backpack containing 11 one-kilogram bricks of a white powdery substance, with cocaine later being detected. Zuniga drove A r t e a g a to a Whatabuger in Hidalgo, Texas, where Arteaga was picked up by a n o t h e r co-conspirator. Arteaga told law enforcement authorities that he had p a id Zuniga to pick him up and drive him. Zuniga informed the district court t h a t the factual basis recited by the Government was correct. Additionally, he a d m it t e d that he picked up Arteaga knowing that Arteaga had a controlled s u b s t a n c e in the backpack. Zuniga told the district court that he did so to help in the distribution of that substance. A district court may grant a defendant a mitigating decrease in his offense le v e l depending on his degree of participation in the offense. U.S.S.G. § 3B1.2. The determination whether a defendant was a minor or minimal participant is r e v ie w e d for clear error. United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5 t h Cir. 2005). "A factual finding is not clearly erroneous if it is plausible in lig h t of the record read as a whole." Id. at 203. A defendant's participation in an offense is not evaluated with reference " t o the entire criminal enterprise of which [the defendant was] a part"; instead, it is evaluated in relation to the defendant's conduct. United States v. Garcia, 2 4 2 F.3d 593, 598-99 (5th Cir. 2001) (internal quotation marks omitted). This c o u r t has consequently held that § 3B1.2 applies only when a defendant is s u b s t a n t ia lly less culpable than the average participant. Villanueva, 408 F.3d a t 203-04. And "[i]t is not enough that a defendant does less than other

p a r tic ip a n t s ; in order to qualify as a minor participant, a defendant must have b e e n peripheral to the advancement of the illicit activity." Id. at 204 (internal

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Document: 00511181814 Page: 3 No. 09-40009

Date Filed: 07/22/2010

q u o t a t io n marks omitted). It is the defendant's burden to show that he merits a § 3B1.2 adjustment. Garcia, 242 F.3d at 597. T h e only evidence concerning Zuniga's role consisted of the PSR's account o f the conspiracy and the facts acknowledged by Zuniga at rearraignment and a t sentencing. In making factual determinations with regard to a sentence, a d i s tr ic t court may rely on any information contained in the PSR that has any in d ic iu m of reliability. United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992). The defendant bears the burden of showing that the PSR "is materially untrue, in a c c u r a t e or unreliable." United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1 9 9 1 ). Absent credible rebuttal evidence, the sentencing court may adopt the P S R as its own. United States v. Ford, 558 F.3d 371, 376-77 (5th Cir. 2009). Z u n ig a presented no evidence to rebut the PSR. The district court adopted t h e factual recitations in the PSR. Thus, the uncontradicted evidence is that Z u n iga fully participated in the conspiracy and made possible the transportation o f the cocaine that was in Arteaga's backpack. Zuniga's participation was

t h e r e fo r e essential, and not merely peripheral, to the advancement of the illicit a c t iv it y , see Villanueva, 408 F.3d at 204, and was "coextensive with the conduct fo r which he was held accountable." Garcia, 242 F.3d at 598-99. Consequently, t h e district court did not clearly err in denying Zuniga a mitigating role a d ju s tm e n t . See Villanueva, 408 F.3d at 203 & n.9. A F F IR M E D .

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