United States v. Fernando Barraza-Reveles ( 2015 )


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  •      Case: 14-50792      Document: 00513076973         Page: 1    Date Filed: 06/12/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 14-50792
    Fifth Circuit
    FILED
    Summary Calendar                            June 12, 2015
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,
    versus
    FERNANDO BARRAZA-REVELES,
    Defendant–Appellant.
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 2:13-CR-1106
    Before SMITH, WIENER, and ELROD, Circuit Judges.
    PER CURIAM: *
    Fernando Barraza-Reveles was convicted by a jury of one count each of
    conspiracy to possess with intent to distribute methamphetamine (“meth”),
    possession of meth with intent to distribute, conspiracy to import meth, and
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50792    Document: 00513076973     Page: 2   Date Filed: 06/12/2015
    No. 14-50792
    importation of meth. The district court sentenced him, below the guideline
    range, to concurrent 240-month sentences and three years’ supervised release.
    Barraza-Reveles claims that the court should not have instructed the
    jury that it could consider whether exculpatory statements made by him, which
    were later determined to be false, could be considered as evidence of guilty
    knowledge. Barraza-Reveles maintains that the instruction may have led the
    jury to believe that the court was expressing an opinion that a false statement
    had in fact been made, that the court did not advise the jurors that they should
    consider the statements in light of the other evidence presented, that the
    court’s examples of possible innocent explanations for false statements did not
    apply to Barraza-Reveles’s particular case, the jurors may not have thought
    that they could consider other innocent explanations, and that the examples
    given improperly shifted the burden to the defense.
    Because Barraza-Reveles objected to the instruction, we review for abuse
    of discretion. See United States v. Orji-Nwosu, 
    549 F.3d 1005
    , 1008 (5th Cir.
    2008). “We consider whether the charge, as a whole, was a correct statement
    of the law and whether it clearly instructed the jurors as to the principles of
    the law applicable to the factual issues confronting them.” 
    Id. (internal quota-
    tion marks and citation omitted). Having done so, we conclude that the jury
    was properly informed of its duty to determine the facts, its duty to consider
    all of the evidence, the burden of proof on the government, and the fact that
    the defense was not required to present evidence or prove innocence. See 
    id. Barraza-Reveles asserts
    that his sentence is substantively unreasona-
    ble. He maintains that the guideline governing importing or trafficking of
    meth, U.S.S.G. § 2D1.1, is not empirically based and thus overstates the seri-
    ousness of his offense. Additionally, Barraza-Reveles maintains that the court
    should have given a lower sentence in light of his favorable personal
    2
    Case: 14-50792    Document: 00513076973     Page: 3      Date Filed: 06/12/2015
    No. 14-50792
    characteristics and lack of a criminal history. Barraza-Reveles preserved his
    request for a downward variance based on his personal characteristics, and we
    review the argument for an abuse of discretion. See Gall v. United States, 
    552 U.S. 38
    , 51 (2007). He did not, however, assert that a variance was warranted
    based on the lack of an empirical basis for the guideline, so we review that
    contention for plain error only. See Puckett v. United States, 
    556 U.S. 129
    , 135
    (2009); United States v. Medina-Anicacio, 
    325 F.3d 638
    , 643 (5th Cir. 2003).
    Barraza-Reveles’s contention that the court should have taken into
    account the empirical basis for the meth guideline is foreclosed. See, e.g.,
    United States v. Duarte, 
    569 F.3d 528
    , 530–31 (5th Cir. 2009). Furthermore,
    his general disagreement with the propriety of the sentence and the district
    court’s weighing of the 18 U.S.C. § 3553(a) factors does not establish that the
    court failed to account for a significant factor, gave significant weight to an
    improper factor, or clearly erred in weighing sentencing factors. See United
    States v. Diehl, 
    775 F.3d 714
    , 724 (5th Cir. 2015). Barraza-Reveles has not
    demonstrated that the court erred by sentencing him to a below-guideline sen-
    tence. See 
    Puckett, 556 U.S. at 135
    ; 
    Gall, 552 U.S. at 51
    .
    The judgment of conviction and sentence is AFFIRMED.
    3
    

Document Info

Docket Number: 14-50792

Judges: Smith, Wiener, Elrod

Filed Date: 6/12/2015

Precedential Status: Non-Precedential

Modified Date: 10/19/2024