United States v. Meza , 328 F. App'x 952 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 21, 2009
No. 07-51230
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
NAZARIO MEZA
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1903-1
Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Nazario Meza pleaded guilty to one count of conspiracy to possess with
intent to distribute more than five kilograms of cocaine and two counts of
possession with intent to distribute more than five kilograms of cocaine. The
district court departed from the guidelines range of 168 to 210 months and
sentenced Meza to 240 months in prison. He now appeals.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-51230
Meza avers that he did not receive the required pre-sentencing notice that
the court was contemplating an upward departure. He did not raise that
objection in the district court. Accordingly, we review only for plain error. F ED.
R. C RIM. P. 52(b).
To show plain error, Meza must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 129 S.
Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. To satisfy the
“substantial rights” prong, “in most cases . . . the error must have been
prejudicial: It must have affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993).
If a district court is contemplating a departure “on a ground not identified
for departure either in the presentence report or in a party’s prehearing
submission, the court must give the parties reasonable notice that it is
contemplating such a departure.” F ED. R. C RIM. P. 32(h). Although the court
erred when it did not give notice of the potential departure, Meza has not borne
his burden of persuasion with respect to prejudice. Specifically, he has failed to
show (or even argue) that the error affected the outcome, i.e., that he would have
received a lower sentence had the district court properly given notice. See
United States v. Jones, 444 F.3d 430, 443 (5th Cir. 2006).
Meza argues that his sentence is unreasonable. He avers that the district
court gave significant weight to an irrelevant or improper factor, the alleged
threats made to the cooperating codefendants. Meza contends further that the
extent of the departure is unreasonable and that the district court erred in
failing to consider and articulate the 18 U.S.C. § 3553(a) factors and erred in
imposing a sentence above the guideline range that did not advance the
objectives of § 3553(a)(2). Because Meza did not raise these arguments in the
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district court, review is for plain error. See United States v. Hernandez-
Martinez, 485 F.3d 270, 272-73 (5th Cir.), cert. denied, 128 S. Ct. 325 (2007).
An appellate court’s review of a sentence must start with the issue
whether the district court committed any “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007). If the
sentencing decision is procedurally sound, the appellate court then considers
“the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
The sentencing transcript and statement of reasons indicate that the
district court departed upward given (1) Meza’s leadership role and position of
trust, (2) the large amounts of cocaine involved, (3) that Meza was in charge of
moving the cocaine from El Paso, Texas, to various cities throughout the United
States, and (4) his obvious importance to the drug trafficking organization as
evidenced by the numerous death threats received by the cooperating
defendants.
The district court’s reasons for the departure comport with the sentencing
goals of § 3553(a)(2), and the departure is justified by the facts of the case. See
United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). Moreover,
Meza points to nothing in the sentencing record to support his assertion that the
district court accorded significant weight to an improper factor, i.e., the threats
made to the cooperating codefendants, and cites no case law suggesting that
such a factor is indeed improper. Lastly, this court has upheld departures or
variances similar to or greater than the 30-month departure in Meza’s sentence.
See United States v. Smith, 417 F.3d 483, 492-93 & n. 40 (5th Cir. 2005); United
States v. Jones, 444 F.3d at 433, 442-43.
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No. 07-51230
AFFIRMED.
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