United States v. Mar , 77 F. App'x 241 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
October 6, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 03-20117
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
LUIS FRANCISCO MAR
Defendant - Appellee
______________________________________________________________________________
On Appeal from the United States District Court for the
Southern District of Texas
(02-CR-563-1)
______________________________________________________________________________
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal we review Luis Francisco Mar’s (hereinafter, “Mar”) conviction for
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
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impersonating a Federal Bureau of Investigation (hereinafter, “FBI”) agent, in violation of 18
U.S.C. § 912. For the following reasons, we uphold the conviction.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Mar, posing as an FBI agent, told Alfredo Arreguin (hereinafter, “Arreguin”) that there
was a contract for $30,000 to kill Arreguin. Mar told Arreguin that if Arreguin paid $15,000, the
FBI would pay the other $15,000 and the contract would be cancelled. Mar warned Arreguin that
if he did not pay the money, he and his family would be hurt. Mar later lowered the demand to
$3,500. Mar was apprehended when he sent a courier to pick up the money from Arreguin and
the courier was intercepted by actual FBI agents contacted by Arreguin.
Mar plead guilty without an agreement and the district court sentenced him to 33 months
imprisonment, followed by one year of supervised release. However, the district court failed to
inform Mar that his actual term of imprisonment could be increased by up to 12 months, if he
violated the terms of the supervised release. Mar argues that the court’s failure to comply with
Federal Rule of Criminal Procedure 11 (c) (2001), which requires the district court to inform
defendants of the effects of supervised release, warrants reversal of his conviction.
Mar also argues that the district erred by applying U.S.S.G. § 2B3.2 (Nov. 2002), the
Federal Sentencing Guideline applicable to extortion by force or threat of injury or serious
damage. Mar argues that he made no threat that he or his affiliates would injure Arreguin. At the
time of his sentencing, Mar asked for a downward departure, but he did not clearly object to the
use of U.S.S.G. § 2B3.2. On appeal, however, Mar argues that his motion for downward
departure and statements he made at the sentencing was the equivalent to an objection to the use
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of U.S.S.G. § 2B3.2. We consider the two arguments in turn.
III.
FAILURE TO INFORM DEFENDANT OF EFFECTS OF SUPERVISED RELEASE
Because Mar did not raise a Rule 11 challenge in the district court, this court reviews the
district court for plain error only. United States v. Vonn, 122 S.Ct. 1043, 1048 (2002); United
States v. Hekimain, 975 F.2d 1098 (5th Cir. 1992); United States v. Reyes, 300 F.3d 555, 560 (5th
Cir. 2002). To establish plain error, Mar must show (1) there is an error (2) that is clear (3) that
affects his substantial rights. Id. at 558.
Mar argues that the district court plainly erred by not informing him of or determining that
he understood the effects of supervised release, and thus violated Federal Rule of Criminal
Procedure 11 (c). It is clear that the district court’s failure to inform Mar of the additional prison
time he faced if he violated the conditions of his supervised release is clear error. Id. at 560.
However, Mar does not argue or allege that the district court’s error was a material factor which
affected his decision to plead guilty or that if he had known of the possibility of additional prison
time, he would have plead differently. Id. at 558-59. Mars fails to show that the district court’s
error affected his substantial rights and thus, that the district court has committed plain error. Id.;
Vonn, 122 S.Ct. at 1048.
III.
SENTENCING UNDER U.S.S.G. § 2B3.2
Mar did not object to the use of U.S.S.G. § 2B3.2 at trial. Instead he moved for a
downward departure. On appeal, Mar argues that U.S.S.G. § 2B3.2 should not have been used
because his actions were not threats, but fraud or extortion. Because Mar makes a different
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argument on appeal than he did before the district court, we review the district court’s decision
for plain error. United States v. Musa, 45 F.3d 922, 924 (5th Cir. 1995); FED. R. CRIM. P.
52(b).
The sentencing guideline for impersonating an FBI agent is U.S.S.G. § 2J1.4, but that
guideline provides for cross-referencing to another guideline if the impersonation was to facilitate
another offense. PSR ¶ 24; U.S.S.G. § 2J1.4 (c)(1). Thus, the district court sentenced Mar under
U.S.S.G. § 2B3.2 because that section applies “if there was any threat, express or implied, that
reasonably could be interpreted as one to injure a person or physically damage property, or any
comparably serious threat...” U.S.S.G. § 2B3.2, comment. (n.2). “Even if the threat does not in
itself imply violence, the possibility of violence or serious adverse consequences may be inferred
from the circumstances of the threat or the reputation of the person making it.” Id.
The district court found that Mar’s actions and statements to Arreguin were threats as
defined by § 2B3.2. Mar’s argument that §2B3.2 does not apply when there is only a threat that a
person would be injured, but only when there is a threat to injure someone is unconvincing. Note
2 to U.S.S.G. § 2B3.2 makes it clear that this guideline applies to Mar’s statements to Arreguin.
Mar fails to demonstrate that the district court erred in applying U.S.S.G. § 2B3.2 to sentence
him.
IV.
CONCLUSION
For the foregoing reasons, we affirm the district court’s decision.
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