USA v. Sergio Ayala-Tello

Filing

USA v. Sergio Ayala-Tello

Doc. 0

Case: 09-41094

Document: 00511218517

Page: 1

Date Filed: 08/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41094 S u m m a r y Calendar August 30, 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. S E R G I O AYALA-TELLO, 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. 1:09-CR-366-2

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* S e r g io Ayala-Tello pleaded guilty without the benefit of a plea agreement t o possession with intent to distribute less than 100 kilograms of marijuana. Ayala-Tello was indicted for possessing more than 100 kilograms, but the G o v e r n m e n t stipulated to an amount between 90 and 100 kilograms. AyalaT e llo sought an offense level reduction as a minor participant and a downward d e p a r t u r e based on his assertion that he agreed to smuggle the marijuana b e c a u s e of "the physical hazards and risks associated with prolonged exposure
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41094

Document: 00511218517 Page: 2 No. 09-41094

Date Filed: 08/30/2010

t o the elements" he would have encountered had he chosen to wait rather than p a r tic ip a t e in the offense. The district court, after hearing argument, denied the r e q u e s ts and sentenced Ayala-Tello to 44 months in prison. Ayala-Tello argues that the district court clearly erred in failing to grant a reduction for his minor role in the offense. He contends that his presence was p e r ip h e r a l to the drug transporting because he was "just along for the ride." A U .S .S .G . § 3B1.2 reduction applies only when a defendant is substantially less c u lp a b le than the average participant. United States v. Villanueva, 408 F.3d 1 9 3 , 203-04 (5th Cir. 2005); United States v. Garcia, 242 F.3d 593, 598-99 (5th C ir . 2001). Whether the defendant is a minor participant is a factual

d e t e r m in a t io n that is reviewed for clear error. Villanueva, 408 F.3d at 203. Ayala-Tello's argument that he was simply along for the ride is in direct conflict w it h his statement at the time of his guilty plea that he knew the marijuana was p r e s e n t and that he was to be paid for transporting it within the United States. His argument on appeal is also in direct conflict with his objection to the p r e s e n t e n c e report in which he asserted that he agreed to "assist" in the t r a n s p o r t a t io n of the bundles of marijuana. The district court did not clearly err in denying him a role adjustment under § 3B1.2. See Villanueva, 408 F.3d at 2 0 3 & n.9. Ayala-Tello argues that the district court erred in failing to grant a d o w n w a r d sentencing departure based on his assertion that he was coerced into jo in in g the marijuana transportation scheme by the exigencies of being stranded b e tw e e n the Rio Grande River and the ship channel. This court generally lacks t h e jurisdiction to review a district court's refusal to depart downwardly from the g u id e lin e s sentencing range. United States v. Hernandez, 457 F.3d 416, 424 (5th C ir . 2006). The jurisdictional bar applies even where the district court

s u m m a r ily denies a request for a downward departure or implicitly denies the r e q u e s t by imposing a within-guidelines sentence. Id. This court, however, does h a v e the authority to review the denial of a motion to downwardly depart where 2

Case: 09-41094

Document: 00511218517 Page: 3 No. 09-41094

Date Filed: 08/30/2010

t h e district court "`held a mistaken belief that the Guidelines do not give it the a u t h o r it y to depart.'" United States v. Lucas, 516 F.3d 316, 350 (5th Cir.), cert. d e n ie d , 129 S. Ct. 116 (2008) (quoting United States v. Sam, 467 F.3d 857, 861 (5 t h Cir. 2006)). Ayala-Tello does not argue and nothing in the record indicates t h a t the district court believed it lacked the authority to grant the request for a d o w n w a r d sentencing departure. Accordingly, this court lacks jurisdiction to r e v ie w the district court's denial of the motion for a downward departure. See L u c a s , 516 F.3d at 350. T o the extent that Ayala-Tello argues that the district court abused its d is c r e t io n by not reducing his sentence pursuant to 18 U.S.C. § 3553(a) based on " h is subjective point of view," his argument is unavailing. Following United S ta te s v. Booker, 543 U.S. 220 (2005), sentences are reviewed for reasonableness in light of the sentencing factors set forth in § 3553(a). United States v. Mares, 4 0 2 F.3d 511, 518-19 (5th Cir. 2005). This court's precedent makes it clear that " a checklist recitation of the section 3553(a) factors is neither necessary nor s u ffic ie n t for a sentence to be reasonable." United States v. Smith, 440 F.3d 704, 7 0 7 (5th Cir. 2006); see also United States v. Rita, 551 U.S. 338, 358 (2007). Ayala-Tello's argument is no more than a disagreement with the district court's b a la n c in g of the § 3553(a) factors and the aptness of the sentence imposed. This d is a g r e e m e n t does not show error in connection with his sentence, nor does it s h o w that the sentence imposed was not "reasonable under the totality of the r e le v a n t statutory factors." United States v. Brantley, 537 F.3d 347, 349 (5th C ir . 2008) (quotation marks omitted). AFFIRMED.

3