United States v. David Barouch ( 2012 )

Case: 10-11145 Document: 00511779976 Page: 1 Date Filed: 03/07/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 7, 2012
No. 10-11145
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID BAROUCH,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-99-1
Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
Proceeding pro se, David Barouch appeals the sentence imposed following
his guilty plea to possessing an unregistered destructive device. For the reasons
that follow, we affirm.
Barouch argues that the Government breached its oral agreement to move
for a U.S.S.G. § 5K1.1 reduction in sentence based on his substantial assistance
in its investigation of a murder case. Barouch did not raise this objection at
sentencing; therefore, review is for plain error only. See United States v. Reeves,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11145 Document: 00511779976 Page: 2 Date Filed: 03/07/2012
No. 10-11145
255 F.3d 208, 210 (5th Cir. 2001). Given the absence of any record evidence of
the oral agreement, Barouch has not borne his burden of proving by a
preponderance of the evidence the facts establishing a breach. See United States
v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir. 1993). Barouch’s allegations of
unconstitutional motive on the part of the Government are purely conclusional
in the absence of supporting evidence. In light of the preceding, this claim
cannot survive plain error review.
Additionally, Barouch argues that the district court abused its discretion
in denying his second unopposed motion to continue sentencing to ensure the
testimony of his forensic expert. Barouch contends that the expert would have
testified that the most likely reason the explosive he placed on the porch of his
ex-wife did not detonate was Barouch’s intentional disabling of the device.
However, the expert’s report, adduced at sentencing, gives no opinion on how the
bomb’s initiator was disabled. Barouch has not shown that the expert’s
testimony would have adduced “substantial favorable evidence” on the
controverted issue whether Barouch intended to harm his wife and, therefore,
he also has not shown that he was materially prejudiced by the district court’s
decision to deny the motion to continue. See United States v. Botello, 991 F.2d
189, 193 (5th Cir. 1993). He has thus shown no abuse of discretion. See id.For the first time on appeal, Barouch asserts that the district court abused
its discretion in failing to sua sponte order a psychological examination to assess
his mental state at the time of the offense for purposes of assessing an
appropriate sentence. Barouch, however, has adduced no evidence that the
district court should have been on notice that his mental competency was at
issue. Cf. United States v. Messervey, 317 F.3d 457, 463 (5th Cir. 2002).
Consequently, he cannot survive plain error review. See Puckett v. United
States, 556 U.S. 129, 135 (2009).
Challenging the substantive reasonableness of his sentence, Barouch
contends that the district court erroneously found that he intended to harm his
2
Case: 10-11145 Document: 00511779976 Page: 3 Date Filed: 03/07/2012
No. 10-11145
wife with the explosive. The district court’s finding that Barouch intended to
injure his ex-wife with the explosive was based on its determination that
Barouch was not a credible witness. We will not disturb a trier-of-fact’s
credibility determination. See United States v. Goncalves, 613 F.3d 601, 609 (5th
Cir. 2010).
His remaining arguments attacking the substantive reasonableness of his
sentence were not raised below and are reviewed for plain error only. United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Barouch argues that his
sentence was unreasonable insofar as it constituted an unwarranted disparity.
Barouch’s sentence fell within the guidelines range and is thus presumptively
reasonable. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th
Cir. 2008). Barouch has neither rebutted this presumption nor shown plain
error insofar as he has failed to provide any evidence to support his conclusional
sentencing disparity claim.
Barouch’s sentencing argument that there was a failure to present
evidence in mitigation is more properly construed as one alleging ineffective
assistance of counsel. Such claims generally “cannot be resolved on direct appeal
when [they have] not been raised before the district court since no opportunity
existed to develop the record on the merits of the allegations.” United States v.
Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and
citation omitted). Finally, Barouch’s contention that this appeal should be held
in abeyance so that he might proceed via 28 U.S.C. § 2255 to better develop the
appellate record is without merit. See United States v. Bernegger, 661 F.3d 232,
241 (5th Cir. 2011).
AFFIRMED.
3