United States v. Cardenas ( 2021 )

Case: 20-10708 Document: 00515899051 Page: 1 Date Filed: 06/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 14, 2021
No. 20-10708 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ricky Cardenas,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-368-1
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Ricky Cardenas pleaded guilty to possession with intent to distribute
methamphetamine. The presentence report (PSR) held Cardenas
responsible for 1,167 kilograms of converted drug weight. Cardenas objected
to this amount because some of the methamphetamine was for his personal
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10708 Document: 00515899051 Page: 2 Date Filed: 06/14/2021
No. 20-10708
use. The district court overruled Cardenas’s objection to the drug quantity
calculation, rejected his request for a downward variance, and sentenced him
to 165 months in prison.
Cardenas argues that the district court erred in calculating the drug
quantity attributable to him. He does not challenge the factual finding that
he possessed 1,167 kilograms of converted drug weight but argues that there
was not sufficient evidence to show that he intended to distribute more than
1,000 kilograms of converted drug weight. We review the district court’s
factual finding on drug quantity for clear error. United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005).
Contrary to Cardenas’s argument, 1,167 kilograms of combined drug
weight, supported by the facts in the PSR, shows that he possessed the
methamphetamine with the intent to distribute it. See United States v. Rains,
615 F.3d 589, 594 (5th Cir. 2010); United States v. Trujillo, 502 F.3d 353, 357
(5th Cir. 2007). Cardenas does not present any evidence of his actual drug
use but simply speculates as to the amount of daily drug usage. This is not
sufficient to show that the PSR’s information is “materially untrue,
inaccurate, or unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th
Cir. 2012) (internal quotation marks and citation omitted). Considering the
record as a whole, the district court’s factual finding that Cardenas possessed
with the intent to distribute between 1,000 and 3,000 kilograms of converted
drug weight is plausible and not clearly erroneous. See Betancourt, 422 F.3d
at 246.
Cardenas requested credit for time served in federal custody prior to
his sentencing. The district court stated that it thought that the credit for
time served would be granted and granted Cardenas’s request to include the
matter in the judgment, which the district court did. There is nothing in the
record to suggest that the district court would have lowered Cardenas’s
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Case: 20-10708 Document: 00515899051 Page: 3 Date Filed: 06/14/2021
No. 20-10708
sentence had it known that the recommendation for credit for time served
was not mandatory. In United States v. Taylor, 973 F.3d 414, 418 (5th Cir.
2020), we noted that district courts are not permitted to compute sentence
credit, that a request for such credit was inviting error, and that any such
error would be reversed only if it resulted in manifest injustice. In this case,
there is no uncertainty in the district court’s intent, and Cardenas has failed
to demonstrate entitlement to a limited remand under Taylor.
AFFIRMED.
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