USA v. Ismael Rico

Filing

PUBLISHED OPINION FILED. [16-10235 Affirmed ] Judge: TMR , Judge: CH , Judge: GJC Mandate pull date is 08/10/2017 for Appellant Ismael Rico [16-10235]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10235

United States Court of Appeals
Fifth Circuit

FILED
July 20, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ISMAEL RICO,
Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
HAYNES, Circuit Judge:
In this appeal of a criminal sentence, Defendant Ismael Rico challenges
the application of two enhancements to his base offense level and the denial of
a reduction for acceptance of responsibility. For the following reasons, we
AFFIRM.
I.
Defendant Ismael Rico pleaded guilty to conspiracy to possess with
intent to distribute a controlled substance. In Rico’s presentence investigation
report (“PSR”), the probation officer assessed a base offense level of thirtyeight.

The PSR also applied a two-level adjustment under United States

Sentencing Guideline (“U.S.S.G.”) § 2D1.1(b)(1) because the offense involved a

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firearm; a two-level adjustment under U.S.S.G. § 2D1.1(b)(5) because the
methamphetamine that Rico distributed had been imported; and a two-level
adjustment under U.S.S.G. § 2D1.1(b)(12) on the basis that Rico maintained a
premises for the purpose of distributing a controlled substance. 1 Following a
three-level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility,
The PSR calculated Rico’s total offense level as forty-one. That total offense
level, combined with a criminal history category of III, yielded a guidelines
imprisonment range of 360 months to life.

But because the statutory

maximum prison term was forty years, the guidelines range became 360 to 480
months. See 21 U.S.C. §§ 841(b)(1)(B), 846; U.S.S.G. § 5G1.1(a); U.S.S.G. Ch.
5, Pt. A.
At sentencing, the district court denied the reduction for acceptance of
responsibility, but otherwise adopted the PSR, resulting in a Guidelines range
of 480 months due to the statutory maximum. The district court sentenced
Rico to 400 months in prison and a four-year term of supervised release.
II.
We review the interpretation of the Guidelines de novo and factual
findings for clear error. United States v. Serfass, 684 F.3d 548, 550 (5th Cir.
2012). There is no clear error where the district court’s finding is plausible in
light of the record as a whole. United States v. Juarez-Duarte, 513 F.3d 204,
208 (5th Cir. 2008) (per curiam).
A.
In his first issue on appeal, Rico challenges the two-level enhancement
he received for importation of methamphetamine under U.S.S.G. § 2D1.1(b)(5).
More specifically, he maintains that the information in the PSR was
insufficient to support a finding that the methamphetamine was from Mexico.

1

According to the PSR, the November 1, 2014, version of the Guidelines was used.

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Where a defendant has intentionally relinquished or abandoned a known right,
the issue is waived. United States v. Olano, 507 U.S. 725, 733 (1993). Because
Rico waived this objection, we cannot address it. See United States v. Musquiz,
45 F.3d 927, 931 (5th Cir. 1995) (“Waived errors are entirely unreviewable,
unlike forfeited errors, which are reviewable for plain error.”).
In his objections to the PSR, Rico contested that the methamphetamine
was imported from Mexico. By his written objections, Rico essentially made
two arguments: (1) he did not know the origin of the methamphetamine, and
thus his base offense level could not be enhanced and (2) the information
contained in the PSR was insufficient to support the enhancement because it
was unreliable. Prior to the sentencing hearing, the district court entered an
order tentatively concluding that Rico’s objections were without merit. The
district court stated that it was “advising the parties of such tentative
conclusion so that it can be taken into account by the parties in determining
what presentations to make at the sentencing hearing.”
At the sentencing hearing, the district court asked Rico whether he “still
want[ed] to pursue any of those objections.” Counsel for Rico responded in the
affirmative, but chose to pursue some, but not all, of the objections. He stated
that, as to the importation enhancement, “that’s a legal objection as to the
standard used by the Fifth Circuit. We’re simply making that objection to
preserve it for later appeal.” Counsel further conceded that he “agree[d] that
. . . as the law stands now, that is a proper finding.” (emphasis added). Indeed,
when the court clarified whether “the issue is whether or not the law should
be that the increase should not be applicable if he doesn’t know it came from
Mexico,” counsel responded, “Yes, Your Honor.” This exchange shows that,
although Rico knew of his objection based on insufficient information, he
consciously decided to forgo that objection at sentencing. Instead, he limited
his objection to the standard applied by this circuit and acknowledged the
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enhancement was proper under that precedent. Accordingly, he waived his
objection. See Musquiz, 45 F.3d at 931.
Rico maintains that the tentative ruling was sufficient to preserve the
issue on appeal. We disagree. The ruling was only a tentative one, intended
to assist the parties in preparing for sentencing. Contrary to Rico’s suggestion,
it was not meant to discourage pursuing objections; indeed, the district court
began the sentencing hearing by explicitly asking Rico if he wanted to pursue
any of his objections. Again, Rico did so, but did not pursue all of them.
Accordingly, this is not a situation where further objection would have been
futile. Cf. United States v. Gerezano-Rosales, 692 F.3d 393, 399–400 (5th Cir.
2012). 2
B.
Rico next argues that the district court erred in applying an
enhancement to his base offense level for “maintain[ing] a premises for the
purpose of manufacturing or distributing a controlled substance,” U.S.S.G.
§ 2D1.1(b)(12), because the information in the PSR was insufficiently reliable
to support such a finding. Because the information was sufficiently reliable to
support the maintaining-a-premises finding, we affirm the application of the
enhancement.
In assessing the maintaining-a-premises enhancement, the PSR stated
that Rico obtained methamphetamine from his source of supply and
transported it to be stored and maintained at his mother’s home, where he
resided “on and off” during the conspiracy. Furthermore, the PSR stated that

To the extent that Rico reurges his legal claim that the mere distribution of imported
methamphetamine is insufficient to warrant the adjustment, that claim, as he admits, is
foreclosed. Under our case law, U.S.S.G. § 2D1.1(b)(5) has no scienter requirement; thus, the
fact that the methamphetamine was imported—regardless of whether he was aware of the
importation—is adequate for the adjustment to apply. See United States v. Foulks, 747 F.3d
914, 915 (5th Cir. 2014) (per curiam); Serfass, 684 F.3d at 553–54.
2

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Rico left methamphetamine with his brother to deliver to a co-defendant, David
Godinez.

Rico’s brother delivered methamphetamine to Godinez from his

mother’s home on several occasions at the direction of Rico.

Moreover,

“coconspirators confirmed that the defendant stored methamphetamine at his
mother’s residence . . . . Godinez retrieved methamphetamine, on at least one
occasion, from the defendant’s mother’s residence.”
In his objections to the PSR, Rico challenged the maintaining-a-premises
enhancement. In responding to the objections, the Government clarified that
Godinez was the primary source of information against Rico, and that Godinez
stated that Rico stored and sold methamphetamine from his mother’s home.
In the addendum to the PSR, the probation officer stated that he clarified the
information with one of the agents on the case as well as with debriefings of
coconspirators and codefendants. The addendum specified that “[o]n more
than one occasion, the defendant instructed his brother, who resided at their
mother’s home, to provide quantities of methamphetamine to Godinez at their
mother’s home.”
When sentencing a defendant, “the court may consider relevant
information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a) (emphasis
added). We have clarified that “[w]hile a PSR generally bears sufficient indicia
of reliability, ‘[b]ald, conclusionary statements do not acquire the patina of
reliability by mere inclusion in the PSR.’” United States v. Narviz-Guerra, 148
F.3d 530, 537 (5th Cir. 1998) (second alteration in original) (citation omitted)
(quoting United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993)). The
applicable “reasonably reliable” standard, however, is “not intended to be
onerous.” United States v. Malone, 828 F.3d 331, 337 (5th Cir.), cert. denied
sub nom. Green v. United States, 137 S. Ct. 526 (2016).
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Rico argues that, by not attributing the statements contained in the PSR
to a particular source, the statements are bald assertions that are
insufficiently reliable. See, e.g., United States v. Rome, 207 F.3d 251, 254 (5th
Cir. 2000) (per curiam) (determining that “the statement that the defendant
and his accomplice would have stolen all the guns if they had not been
interrupted” was a bald assertion); United States v. Williams, 22 F.3d 580, 581
n.3 (5th Cir. 1994) (determining that law enforcement’s statement that the
defendant was “the muscle” behind the conspiracy was a bald assertion). He
likens this case to Narviz-Guerra, in which the defendant challenged the
reliability of statements made in the PSR relating to drug quantity. 148 F.3d
at 537. The PSR in Narviz-Guerra stated that the total amount was “based
primarily on information contained in various debriefings, recorded meetings
and telephone calls, and on the amount of marijuana seized in the different
arrests of the co-conspirators” and that the defendant was only being held
accountable for “those amounts of drugs that have been substantiated.” Id.
We noted that there was no way to determine if the information was reliable
because none of the enumerated sources for the information was attached to
the PSR nor was there an explanation of how the information in the PSR was
corroborated. Id.
Narviz-Guerra does not control the outcome here. Although the PSR and
PSR addendum in this case contain a general laundry list of sources for the
information contained therein, the PSR specifically attributes the information
about storing drugs at the mother’s house to “coconspirators.” Moreover, not
only did the Government clarify in its response to Rico’s objections that the
specific source for the information was Godinez, but also Rico acknowledged
that Godinez was the source of this information at the sentencing hearing,
stating that there was “an allegation from the codefendant Godinez in this case
that Mr. Rico was using his mother’s house to store methamphetamines.”
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Indeed, although the PSR itself does not specifically identify Godinez as the
source for the maintaining-a-premises enhancement, it is apparent from the
PSR and its addendum that Godinez provided the investigating officers with
information about Rico’s involvement in the drug conspiracy as a general
matter. Statements by coconspirators are sufficiently reliable to form the basis
of a finding. See United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013)
(per curiam); United States v. Cantu-Ramirez, 669 F.3d 619, 629 (5th Cir.
2012).
Additionally, upon receipt of Rico’s objections to the PSR, the probation
officer clarified the information in the PSR with an agent on the case. As to
this point, we have noted that information based on the results of a police
investigation is sufficiently reliable. See United States v. Fuentes, 775 F.3d
213, 220 (5th Cir. 2014) (per curiam); United States v. Vela, 927 F.2d 197, 201
(5th Cir. 1991); see also United States v. Godinez, 640 F. App’x 385, 389 (5th
Cir.) 3 (per curiam) (“In light of the [probation officer]’s interview with the case
agent wherein the agent clarified and corroborated the information found in
the investigative material relied upon to compile the PSR, we hold that the
information contained therein, including the description of the [unidentified
confidential informant]’s involvement . . . , is ‘reasonably reliable.’”), cert.
denied, 137 S. Ct. 104 (2016). On these facts, the information was sufficiently
reliable to support the maintaining-a-premises finding.
C.
In his final issue on appeal, Rico maintains that the district court erred
by not granting him a three-point reduction for acceptance of responsibility

Although Godinez is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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under U.S.S.G. § 3E1.1.

Because any error in denying the reduction is

harmless, we affirm.
An error in calculating a defendant’s guidelines range will be harmless
and not require reversal if the district court considered the correct guidelines
range and indicated that it would impose the identical sentence if that range
applied. United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012); United
States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008); United States v. Bonilla,
524 F.3d 647, 656 (5th Cir. 2008)). 4 The record establishes that the district
court was aware of, and considered, the guidelines range that would apply if
Rico received a reduction under § 3E1.1.

At the sentencing hearing, the

Government notified the court of the sentencing range with the reduction and
without the reduction. In announcing the sentence, the district court stated,
“I’ve concluded that a sentence of 400 months of imprisonment would be an
appropriate sentence in this case, and that would be without regard to whether
there was acceptance of responsibility.” (emphasis added). The court went on
to state “[i]n other words, that really is kind of a moot issue because that’s the
sentence I would have imposed, even if the range was 360 to 480 months.”
(emphasis added).

Because the district court considered the purportedly

correct Guidelines range and made it clear that the sentence would be the same
regardless of whether that range applied, any error was harmless. See Duhon,
541 F.3d at 396 (5th Cir. 2008) (“[I]n Bonilla, we concluded that a nonGuideline sentence does not result from the district court’s miscalculation of
the Guideline range if the district court: (1) contemplated the correct Guideline

United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010), does not mandate
a different result. The circumstances of that case involved a district court that did not
consider the correct guidelines range, only the incorrect one. In such cases, in order to
establish harmless error, the Government must show that the district court would have
imposed the same sentence for the same reason. Richardson, 676 F.3d at 511 (contrasting
the requirements of Bonilla and Duhon with those of Ibarra-Luna).
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range in its analysis and (2) stated that it would have imposed the same
sentence even if that range applied.” (citing Bonilla, 524 F.3d at 656)).
AFFIRMED.

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