USA v. Edgar Cruz-Flores


UNPUBLISHED OPINION FILED. [09-41248 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 10/15/2010 for Appellant Edgar Ricardo Cruz-Flores [09-41248]

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USA v. Edgar Cruz-Flores Doc. 0 Case: 09-41248 Document: 00511244507 Page: 1 Date Filed: 09/24/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-41248 S u m m a r y Calendar September 24, 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. E D G A R RICARDO CRUZ-FLORES, 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-691-2 B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. PER CURIAM:* E d g a r Ricardo Cruz-Flores pleaded guilty to possession with intent to d is t r ib u t e more than 50 kilograms of marijuana. Cruz-Flores asserts that the d is t r ic t court violated his right to receive the presentence report ("PSR") 35 days p r io r to sentencing under Federal Rule of Criminal Procedure 32. He asserts t h a t he was denied sufficient time to conduct adequate research, file a written ob je c tio n to the two-level aggravated role enhancement, and gather evidence and w it n e s s e s in support of his objection. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-41248 Document: 00511244507 Page: 2 No. 09-41248 Date Filed: 09/24/2010 R u le 32 provides that the probation officer must disclose the PSR to the d e fe n d a n t 35 days prior to sentencing "unless the defendant waives this m in im u m period." FED. R. CRIM. P. 32(e)(2). Defense counsel explicitly agreed t o hold the sentencing hearing one week after the PSR was to be revised to in c lu d e the aggravated role enhancement based upon new information from a cod efen d a n t. During the subsequent sentencing hearing, counsel did not request a d d it io n a l time to prepare but instead proceeded without objection to the timing o f the disclosure of the revised PSR. Counsel presented a detailed objection to t h e two-level enhancement and conducted a thorough cross examination of the c o d e fe n d a n t who provided the information. Cruz-Flores cannot now claim that h e had insufficient time to investigate and respond to the revised PSR. See FED. R . CRIM. P. 32(e); United States v. Johnston, 127 F.3d 380, 403-04 (5th Cir. 1997) (" C o n s id e r i n g counsel's statement that he was ready to proceed with the s e n te n c in g , defendant cannot now claim that he had insufficient time to in v e s t ig a t e the charge."). M o r e o v e r , even if we were to hold that Cruz-Flores did not waive the 3 5 -d a y period under Rule 32(e), he fails to establish that the timing of the d is c lo s u r e was plain error. See United States v. Esparza-Gonzalez, 268 F.3d 272, 2 7 4 (5th Cir. 2001) ("As neither applicant raised the issue of noncompliance with R u le 32 in the district court, however, we correct the error only if the error was p la in and affected the applicants' substantial rights."). He points to nothing in t h e record that indicates that his sentence would have been different if he had r e c e iv e d the PSR 35 days prior to the sentencing hearing. See Puckett v. United S t a t e s , 129 S. Ct. 1423, 1429 (2009) (explaining that, for an error to warrant r e v e r s a l for plain error, it "must have affected the appellant's substantial rights, w h ic h in the ordinary case means he must demonstrate that it affected the o u tc o m e of the district court proceedings" (internal quotation marks and citation o m it t e d )). 2 Case: 09-41248 Document: 00511244507 Page: 3 No. 09-41248 Date Filed: 09/24/2010 C r u z -F lo r e s also challenges the district court's finding that he recruited a n d exercised managerial authority over at least one other person involved in t h e offense. The district court relied on in-court testimony by Cruz-Flores's c o d e fe n d a n t to make the finding. As he argued in the district court, Cruz-Flores a s s e r t s that the testimony lacked sufficient indicia of reliability to form the basis o f the enhancement because his codefendant was poised to receive a lesser s e n t e n c e in exchange for testifying. The district court was able to observe the w it n e s s 's demeanor as he testified to facts within his personal knowledge. We d e fe r to the district court's credibility determination. See United States v. J u a r e z -D u a r te , 513 F.3d 204, 208 (5th Cir. 2008) (noting, in review of a sentence le v e l enhancement, that we give deference to a district court's credibility d e te r m in a tio n s ). Additionally, Cruz-Flores asserts that his codefendant's testimony was not c r e d ib le because he testified that Cruz-Flores used a mobile telephone or radio t o communicate with someone in the United States, but no such device was fo u n d by the arresting agents. The fact that no phone or radio was found does n o t render the district court's finding implausible in light of the record as a w h o le . The agents described how the suspects, including Cruz-Flores, jumped in t o a sand pit filled with water in an attempt to escape. It is plausible that any m o b ile device Cruz-Flores was carrying was discarded or lost in the water. The d is t r ic t court's finding that he exercised managerial authority is "plausible in lig h t of the entire record," and thus it is not clearly erroneous. See United States v . Valles, 484 F.3d 745, 759 (5th Cir. 2007) ("A factual finding is not clearly e r r o n e o u s if it is plausible in light of the entire record."). T h e judgment of the district court is AFFIRMED. 3

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