USA v. Carlos Borjas

Filing

UNPUBLISHED OPINION FILED. [09-40891 Affirmed] Judge: RHB , Judge: JLD , Judge: PRO. Mandate pull date is 11/29/2010 for Appellant Carlos Borjas [09-40891]

USA v. Carlos Borjas ase: 09-40891 C

Document: 00511287537 Page: 1 Date Filed: 11/08/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40891 S u m m a r y Calendar November 8, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. C A R L O S BORJAS, D e fe n d a n t - Appellant

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-112-1

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* C a r lo s Borjas was convicted following a bench trial of: possession with in t e n t to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) a n d (b)(1)(C); receiving and possessing firearms with obliterated serial numbers a n d not registered in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; unlawfully transferring r e g is t e r e d weapons with obliterated serial numbers and unregistered weapons, in violation of 26 U.S.C. §§ 5841, 5861(e), and 5871; unlawfully transferring
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-40891 Document: 00511287537 Page: 2 Date Filed: 11/08/2010 No. 09-40891 r e g is t e r e d weapons to another person, in violation of 26 U.S.C. §§ 5841, 5861(e), a n d 5871; possession and transfer of machine guns with obliterated serial n u m b e r s , in violation of 18 U.S.C. §§ 922(o) and 924 (a)(2); and possession and t r a n s fe r of machine guns, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). Borjas was found not guilty of carrying and using a firearm in relation to a drugt r a ffic k in g crime, in violation of 18 U.S.C. §§ 924(c)(1)(B)(i) and (c)(1)(B)(ii). He w a s sentenced to 121 months on the drug count and to concurrent sentences of 1 2 0 months on each of the firearm counts. Borjas appeals the firearms sentences, contending: the district court a b u s e d its discretion at the sentencing hearing by admitting the transcript of an a u d io recording of one of the firearms transactions between Borjas and a c o n fid e n tia l informant, which was used to enhance Borjas' sentence; and his s e n te n c e is both procedurally and substantively unreasonable. I n claiming the district court abused its discretion by admitting the t r a n s c r ip t , Borjas asserts: the recording was unreliable, and the Government d id not comply with Federal Rule of Evidence 901(b)(1)(5)'s requirement that it s h o w the proper predicate for its admission. The Rules of Evidence, however, do n o t apply at sentencing proceedings. See FED. R. EVID. 1101(d)(3); United States v . Young, 981 F.2d 180, 187-88 (5th Cir. 1992). A district court at sentencing " m a y consider relevant information without regard to its admissibility under the r u le s of evidence applicable at trial, provided that the information has sufficient in d ic ia of reliability to support its probable accuracy". U.S.S.G. § 6A1.3(a); e.g., U n ite d States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004). In other words, " d u e process merely requires that information relied on in determining an a p p r o p r ia te sentence have `some minimal indicium of reliability' and `bear some r a t io n a l relationship to the decision to impose a particular sentence'". Young, 9 8 1 F.2d at 187 (quoting United States v. Galvan, 949 F.2d 777, 784 (5th Cir. 1 9 9 1 )).

2

Case: 09-40891 Document: 00511287537 Page: 3 Date Filed: 11/08/2010 No. 09-40891 B o r ja s fails to demonstrate the information was "materially untrue". See R a m ir e z , 367 F.3d at 277. Special Agent Casey testified at sentencing: he tested t h e electronic recording device to ensure it worked properly; he was physically p r e s e n t during the surveillance; he could see both Borjas and the confidential in fo r m a n t during their conversation; and he had previously worked with the c o n fid e n tia l informant and was familiar with his voice. That certain portions of t h e conversation might not have been recorded, as Borjas contends, does not a m o u n t to showing what was recorded--that Borjas understood the altered fir e a r m s would travel to Mexico--was unreliable. Further, Borjas fails to show his within-Guidelines sentence was either p r o c e d u r a lly or substantively unreasonable. Pursuant to Gall v. United States, w e engage in a bifurcated review, considering both the procedural propriety and s u b s t a n t iv e reasonableness of the sentence imposed by the district court. 552 U .S . 38, 48-51 (2007); see also United States v. Delgado-Martinez, 564 F.3d 750, 7 5 2 -5 3 (5th Cir. 2009). Although post-Booker, the Guidelines are advisory only, and an ultimate s e n te n c e is reviewed for reasonableness under an abuse-of-discretion standard, t h e district court must still properly calculate the advisory Guideline-sentencing r a n g e for use in deciding on the sentence to impose. Gall, 552 U.S. at 49-51. In t h a t respect, its application of the Guidelines is reviewed de novo; its factual fin d in g s , only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 7 5 1 , 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2 0 0 5 ). B o r ja s contends his sentence is procedurally unreasonable because the d is t r ic t court misapplied the Guidelines by: (1) enhancing his offense level u n d e r Guideline § 2K2.1(b)(1)(B), based on the number of firearms involved in t h e collective offenses; and (2) enhancing his offense level under Guideline § 2K2.1(b)(6), based on Borjas' "knowledge, intent, or reason to believe [any of

3

Case: 09-40891 Document: 00511287537 Page: 4 Date Filed: 11/08/2010 No. 09-40891 t h e firearms] would be used or possessed in connection with another felony o ffe n s e " , i.e., cross the border into Mexico. A sentence is procedurally sound if t h e district court committed no significant procedural error, such as fa ilin g to calculate (or improperly calculating) the Guidelines range, t r e a t in g the Guidelines as mandatory, failing to consider the [18 U .S .C .] § 3553(a) factors, selecting a sentence based on clearly e r r o n e o u s facts, or failing to adequately explain the chosen s e n t e n c e -- in c lu d in g an explanation for any deviation from the G u id e lin e s range. Gall, 552 U.S. at 51. The four-level enhancement imposed pursuant to § 2K2.1(b)(1)(B) for B o r ja s ' offenses involving between eight and 24 firearms was proper. Borjas c o n c e d e s there were three separate transactions involving six firearms, as is lis t e d in the indictment. The presentence investigation report (PSR) established B o r ja s attempted to sell a seventh weapon to the confidential informant, but it w a s rejected due to poor quality. The PSR also established Borjas sold an eighth w e a p o n , an Uzi machine gun, to a co-defendant. Further, the district court fo u n d Borjas delivered two additional firearms to his co-defendants that were n o t already accounted for. Additionally, the four-level enhancement imposed pursuant to

§ 2K2.1(b)(6), based on Borjas' "knowledge, intent, or reason to believe" any of t h e firearms he sold the confidential informant would be "used or possessed in c o n n e c t io n with another felony offense", was procedurally proper. The transcript fo r the conversation between Borjas and the confidential informant on 29 March 2 0 0 7 revealed Borjas understood the weapons were being transported into M e x ic o when he sold them to the informant. The district court found: Borjas h a d "reason to believe" the firearms he sold the informant were being t r a n s p o r t e d into Mexico after purchase; and transporting these types of a u t o m a t ic weapons into Mexico was illegal. The district court imposed other enhancements, but Borjas fails to present a n y contentions relative to them. 4 Therefore, any challenges to those

Case: 09-40891 Document: 00511287537 Page: 5 Date Filed: 11/08/2010 No. 09-40891 e n h a n c e m e n t s are abandoned. E.g., United States v. Torres-Aguilar, 352 F.3d 9 3 4 , 936 n.2 (5th Cir. 2003). B o r ja s contends his sentence is substantively unreasonable because he had n o criminal history points, and because he "led a decent and proper life" prior to h is arrest. Borjas did not object to the substantive reasonableness of his

s e n te n c e in district court; therefore, it is reviewed only for plain error. Puckett v . United States, 129 S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505 F .3 d 389, 391-92 (5th Cir. 2007). Even under the normal standard of review, his c o n t e n t io n fails. Borjas was sentenced to the lowest end of the advisory-Guideline range on t h e firearm counts. A presumption of reasonableness applies to Borjas' withinG u id e lin e s sentence. See Rita v. United States, 551 U.S. 338, 347 (2007); United S ta te s v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). The sentencing ju d g e noted he considered all the factors under § 3553(a) and concluded a s e n te n c e within the Guidelines satisfied them. Borjas has failed to rebut the p r e s u m p t io n of reasonableness because the sentencing judge "is in a superior p o s it io n to find facts and judge their import under § 3553(a)". Gall, 552 U.S. at 51. A F F IR M E D .

5