USA v. Fernando Vasquez-Desiga

Filing

UNPUBLISHED OPINION FILED. [13-40735 Affirmed ] Judge: TMR , Judge: EHJ , Judge: ECP Mandate pull date is 08/13/2014 for Appellant Fernando Vasquez-Desiga [13-40735]

Case: 13-40735

Document: 00512708735

Page: 1

Date Filed: 07/23/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40735
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 23, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FERNANDO VASQUEZ-DESIGA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-526-2
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *

Fernando Vasquez-Desiga (Vasquez) appeals the 77-month term of
imprisonment imposed on his guilty plea conviction for possession with intent
to distribute more than 100 kilograms of marijuana and aiding and abetting.
See 21 U.S.C. § 841 (a)(1), (b)(1)(B); 18 U.S.C. § 2. He contends that the district
court erred in increasing his total offense level for reckless endangerment

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40735

Document: 00512708735

Page: 2

Date Filed: 07/23/2014

No. 13-40735
during flight on the basis that he tossed bundles of marijuana from a moving
vehicle toward oncoming traffic. See U.S.S.G. § 3C1.2.
We pretermit determination of the standard of review in connection with
Vasquez’s claim that the district court made a mistaken finding in connection
with the § 3C1.2 enhancement because he cannot prevail under either
standard. See United States v. Teuschler, 689 F.3d 397, 400 (5th Cir. 2012);
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). In making its
findings, the district court was free to rely on the information in the
presentence report (PSR) that Vasquez tossed the marijuana bundles at
oncoming traffic. See United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992).
It was Vasquez’s burden to show that the PSR was inaccurate. See United
States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). Vasquez, however, presented
no evidence about the tossed bundles.
In addition, we reject Vasquez’s contention that the sentence was
substantively unreasonable. The district court imposed a sentence below the
PSR’s recommended guidelines range. As the district court made clear, it
selected the sentence in light of the factors set forth in 18 U.S.C. § 3553(a).
Vasquez has provided us with no basis for questioning the district court’s
exercise of discretion in evaluating the § 3553(a) factors. See Gall v. United
States, 552 U.S. 38, 51 (2007).
Vasquez concedes

that his contention that

a presumption of

reasonableness should not apply to sentences calculated under U.S.S.G.
§2K2.1(a)(4) is foreclosed, and he raises the issue solely to preserve it for
further review.
AFFIRMED.

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