United States v. Bonugli , 162 F. App'x 326 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2006
Charles R. Fulbruge III
Clerk
No. 03-40484
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO BONUGLI,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:02-CR-1091-ALL
Before JONES, WIENER, and DEMOSS, Circuit Judges.
PER CURIAM:*
Jose Antonio Bonugli appeals his jury conviction and
sentence for conspiracy to possess with intent to distribute more
than one thousand kilograms of marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 846.
Bonugli contends that the district court erred in
admitting evidence related to the July 28, 1999, shooting at 3208
O’Kane Street in Laredo, Texas.
*
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opinion should not be published and is not precedent except under the limited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.
Bonugli was charged with conspiring to possess with
intent to distribute more than one thousand kilograms of marijuana
from on or about February 2, 1999, to on or about February 16,
2002. Evidence related to the shooting on July 28, 1999, was
inextricably intertwined with the charged conspiracy because it
placed Bonugli at 3208 O’Kane Street immediately prior to the
discovery of approximately eight hundred pounds of marijuana.
Therefore, this evidence was intrinsic to the charged conspiracy,
and its admission did not violate FED R. EVID. 404(b). See United
States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992). Moreover, the
district court’s admission of evidence related to the shooting did
not violate FED R. EVID. 403. Bonugli’s contentions that no witness
directly placed him at the house and that the gunshot residue
particles likely came from the hands of the officers who handcuffed
him go to the weight of the evidence rather than its admissibility.
Also, any undue prejudice from the admission of the challenged
evidence was mitigated by the district court’s limiting instruc-
tion. See United States v. Route, 104 F.3d 59, 63 (5th Cir. 1997).
Therefore, the district court did not abuse its discretion in
admitting evidence related to the shooting. See United States v.
Haese, 162 F.3d 359, 364 (5th Cir. 1998). Nevertheless, even if
the district court abused its discretion in admitting evidence
related to the shooting, the error was harmless beyond a reasonable
doubt given the other substantial evidence of Bonugli’s guilt. See
United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995).
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Bonugli also contends that the district court erred in
failing to address him personally and determine whether he wished
to make a statement or present any information to mitigate the
sentence. Because Bonugli did not object on this basis in the
district court, review is for plain error only. United States v.
Reyna, 358 F.3d 344, 350 (5th Cir.) (en banc), cert. denied, 541
U.S. 1065 (2004).
We need not decide whether the district court’s failure
to comply with FED. R. CRIM. P. 32 constituted error that was plain
and affected Bonugli’s substantial rights because in any event, the
district court’s error did not seriously affect the fairness,
integrity, or public reputation of his sentencing proceeding. See
id. at 350-53. Therefore, this court declines to exercise its
discretion to correct the error.
Bonugli also contends that the district court erred in
failing to state reasons in open court for imposing the two-
hundred-ten-month sentence within a guideline range exceeding
twenty-four months. Because Bonugli did not object on this basis
in the district court, review is for plain error only. United
States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000).
Assuming arguendo that there was error and it was plain,
Bonugli has not demonstrated that the error affected his substan-
tial rights or seriously affected the integrity of the judicial
proceeding because his sentence was supported by the record and was
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not contrary to law. See id. at 441. Therefore, he has failed to
establish plain error.
Finally, Bonugli contends that the district court
violated his Sixth Amendment right when it enhanced his sentence
based on facts that were neither admitted by him nor found by a
jury beyond a reasonable doubt. Because Bonugli did not object on
this basis in the district court, this court’s review is for plain
error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732
(5th Cir.), cert. denied, 126 S. Ct. 267 (2005).
The district court erred when it sentenced Bonugli
pursuant to the mandatory guideline system held unconstitutional in
United States v. Booker, 125 S. Ct. 738 (2005). See Valenzuela-
Quevedo, 407 F.3d at 733 (“It is clear after Booker that
application of the Guidelines in their mandatory form constitutes
error that is plain.”). However, Bonugli has failed to point to
any evidence in the record indicating that the same sentence would
not have been imposed had the district court known that the
Sentencing Guidelines were advisory. The record itself gives no
indication that the district court would have reached a different
result under an advisory guidelines system. In fact, the district
court sentenced Bonugli near the middle of the guideline range.
Given the lack of evidence indicating that the district court would
have reached a different conclusion, Bonugli has not demonstrated
that his substantial rights were affected, and, thus, he has failed
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to establish plain error. See United States v. Mares, 402 F.3d
511, 520-22 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Accordingly, the district court’s judgment is AFFIRMED.
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