USA v. Alejandro Cabrera

Filing

UNPUBLISHED OPINION FILED. [14-40962 Affirmed ] Judge: JES , Judge: JLW , Judge: JWE Mandate pull date is 06/03/2015 for Appellant Alejandro Cabrera [14-40962]

Case: 14-40962

Document: 00513041002

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Date Filed: 05/13/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40962
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 13, 2015

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
ALEJANDRO CABRERA,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-140-11
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Alejandro Cabrera was convicted after a jury trial of one count of
conspiracy to possess with the intent to distribute cocaine and one count of
conspiracy to commit money laundering. On appeal, we affirmed the drug
conspiracy conviction, reversed the money laundering conspiracy conviction,
and remanded the case for resentencing.

United States v. Ramirez, 555

F. App’x 315, 319-321 (5th Cir. 2014). On remand, Cabrera objected to the

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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calculation of his base offense level based on the amount of cocaine attributed
to him in the presentence report (PSR). The district court concluded that this
objection was beyond the scope of our remand and overruled the objection.
Cabrera received a within-guidelines sentence of 294 months.
Cabrera first contends that the district court erred in determining his
offense level on remand. This court reviews “the district court’s interpretation
of a remand order, including whether the mandate rule forecloses any of the
district court’s action on remand, de novo.” United States v. Griffith, 522 F.3d
607, 610 (5th Cir. 2008).

Despite raising the issue of the drug quantity

attributed to him in the PSR at his first sentencing, Cabrera argued in his first
appeal only that the evidence was insufficient to support his drug conviction
because the testimony of two of the Government’s witnesses differed. See
Ramirez, 555 F. App’x at 317-24. He did not argue in his first appeal, as he did
in the district court, that the testimony of these two witnesses was insufficient
to support the drug quantity attributed to him for purposes of relevant conduct.
Consequently, we did not consider the argument Cabrera now raises and did
not submit the issue to the district court on remand. Cabrera could have raised
the issue of the calculation of his base offense level based on the amount of
cocaine attributable to him during his first appeal but opted not to. The drug
quantity issue was therefore beyond the scope of this court’s remand order, and
the district court properly declined to address it. See Griffith, 522 F.3d at 610;
United States v. Haas, 199 F.3d 749, 751-53 (5th Cir. 1999).
Cabrera also contends that his within-guidelines sentence was
substantively unreasonable because several members of a different drug
conspiracy received significantly lower sentences than he did. As Cabrera did
not object below, our review is for plain error. United States v. Peltier, 505 F.3d
389, 392 (5th Cir. 2007). Cabrera has provided no evidence, such as nationwide

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sentencing statistics, of an unwarranted disparity between his sentence and
the sentences of any similarly situated defendants nationwide. See United
States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). Any disparity between
Cabrera’s sentence and those of the three individuals he cites was not
unwarranted. See 18 U.S.C. § 3553(a)(6). The district court committed no
error, plain or otherwise, in sentencing Cabrera to 294 months. See Peltier,
505 F.3d at 392.
AFFIRMED.

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