United States v. Alberto Torres-Gonzalez ( 2017 )

Case: 16-50086 Document: 00513951122 Page: 1 Date Filed: 04/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50086
Fifth Circuit
FILED
Summary Calendar April 13, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
ALBERTO LUIS TORRES-GONZALEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:15-CR-457-1
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Alberto Luis Torres-Gonzalez pleaded guilty to aiding and abetting
possession, with intent to distribute, marijuana, in violation of 18 U.S.C. § 2
and 21 U.S.C. § 841(a)(1), (b)(1)(B). He was sentenced, inter alia, to 60 months’
imprisonment. He contends: his appeal waiver does not bar an appeal of his
sentence; and the district court clearly erred in denying him a reduction under
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-50086 Document: 00513951122 Page: 2 Date Filed: 04/13/2017
No. 16-50086
the safety-valve provision. Assuming, arguendo, Torres’ appeal waiver is not
a bar, his substantive challenge to his sentence is nonetheless unavailing.
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Therefore, for this claimed procedural error, which is assumed to have
been preserved in district court, a district court’s factual finding that a
defendant is ineligible for a safety-value reduction because he did not fully and
truthfully debrief is reviewed for clear error. E.g., United States v. McElwee,
646 F.3d 328, 345 (5th Cir. 2011). Along that line, a “factual finding is not
clearly erroneous if it is plausible, considering the record as a whole”. United
States v. King, 773 F.3d 48, 52 (5th Cir. 2014) (internal quotation marks and
citation omitted).
Because Torres failed to provide the Government with all information
and evidence he had concerning a series of related burglaries, the court did not
clearly err in denying a safety-valve reduction. See U.S.S.G. §§ 2D1.1(b)(17),
5C1.2(a)(5); 18 U.S.C. § 3553(f)(5); McElwee, 646 F.3d at 345. Contrary to his
assertions, the burglaries, committed in an effort to steal food and supplies for
Torres and his co-defendants, were relevant conduct as to him because they
2
Case: 16-50086 Document: 00513951122 Page: 3 Date Filed: 04/13/2017
No. 16-50086
occurred within the scope of his agreement to carry marijuana into the United
States and were reasonably foreseeable. See U.S.S.G. § 1B1.3(a)(1)(B).
AFFIRMED.
3