United States v. Francisco Meza-Rojas , 480 F. App'x 784 ( 2012 )


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  •      Case: 11-40015     Document: 00511908788         Page: 1     Date Filed: 07/03/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 3, 2012
    No. 11-40015
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    FRANCISCO MEZA-ROJAS, also known as Chacho, also known as El Ocho,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:05-CR-926-1
    Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Francisco Meza-Rojas pleaded guilty to conspiracy to possess, with intent
    to distribute, 169 kilograms of cocaine and 4,736 kilograms of marijuana. The
    district court sentenced him to 324-months’ imprisonment and five-years’
    supervised release. Meza, proceeding pro se, challenges on numerous grounds
    both his conviction and sentence.
    Meza contends the district court erred when accepting his guilty plea by:
    failing to admonish him regarding the nature of the charge against him; taking
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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    multiple pleas in the same proceeding; failing to advise him fully on the
    consequences of supervised release; and wrongly advising him that he was
    subject to a term of supervised relief for life. No objection having been made in
    district court to any of these claimed errors, review is only for plain error. United
    States v. Vonn, 
    535 U.S. 55
    , 59 (2002). To show reversible plain error, Meza
    must show a forfeited, plain (clear or obvious) error that affects his substantial
    rights. Puckett v. United States, 
    556 U.S. 129
    , 135 (2009). If he makes such a
    showing, our court has the discretion to correct the plain error, but only if it
    seriously affects the fairness, integrity, or public reputation of the judicial
    proceeding. 
    Id.
     Meza has not shown that the district court committed any
    errors in accepting his guilty plea. And even if he had, Meza has not made the
    requisite showing, under plain-error review, that it was reasonably probable
    that, but for any error, he would not have pleaded guilty. United States v.
    Castro-Trevino, 
    464 F.3d 536
    , 541 (5th Cir. 2006).
    Meza also maintains the Government breached the plea agreement by:
    introducing information that raised his base offense level above 32; not
    recommending a sentence reduction for his cooperation; and not allowing him
    additional opportunities to cooperate. Because Meza did not raise this breach-of-
    plea-agreement issue in district court, review is again only for plain error. E.g.,
    United States v. Munoz, 
    408 F.3d 222
    , 226 (5th Cir. 2005). Meza has the burden
    of demonstrating, by a preponderance of the evidence, the underlying facts that
    establish the breach. E.g., United States v. Roberts, 
    624 F.3d 241
    , 246 (5th Cir.
    2010). Meza cannot meet this burden, however, because he has not shown that
    the Government made any of the promises he alleges were breached.
    Meza claims the district court erred in accepting his guilty plea because
    there was an insufficient factual basis to establish that he conspired to possess
    the controlled substances with the intent to distribute them. The elements of
    possession with intent to distribute a controlled substance are: (1) knowledge;
    (2) possession of a controlled substance; and (3) intent to distribute. E.g., United
    2
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    States v. Ortega Reyna, 
    148 F.3d 540
    , 543-44 (5th Cir. 1998). Given that the
    controlled substances were the equivalent of thousands of pounds of marijuana,
    intent to distribute may be inferred. E.g., United States v. Guanespen-Portillo,
    
    514 F.3d 393
    , 396-97 (5th Cir. 2008).
    Meza contends, on several grounds, that his sentence of 324-months’
    imprisonment was procedurally flawed and substantively unreasonable.
    Pursuant to Gall v. United States, 
    552 U.S. 38
    , 51 (2007), the first inquiry is
    whether the district court committed any procedural errors. If the district
    court’s decision is procedurally sound, next considered, “under an abuse-of-
    discretion standard”, is “the substantive reasonableness of the sentence
    imposed”, in the light of “the totality of the circumstances”. 
    Id.
    Meza asserts the district court erred in holding him responsible for an
    equivalent amount of 38,536 kilograms of marijuana. Along that line, Meza
    contends the district court erred by not resolving his objections to the
    presentence investigation report (PSR) and by adopting the facts contained in
    it. The district court’s findings of fact at sentencing are reviewed under the
    clearly-erroneous standard. United States v. Lyckman, 
    235 F.3d 234
    , 237 (5th
    Cir. 2000). It may rely on a PSR when making factual determinations and “may
    adopt the facts contained in the PSR without further inquiry if the facts have an
    adequate evidentiary basis and the defendant does not present rebuttal
    evidence”. United States v. Cooper, 
    274 F.3d 230
    , 239 (5th Cir. 2001). “The
    defendant has the burden of showing that the information relied on by the
    district court in the PSR is materially unreliable.” United States v. Ford, 
    558 F.3d 371
    , 377 (5th Cir. 2009) (internal quotation marks omitted). Meza has not
    shown that this factual finding failed to resolve the disputed issues or was
    clearly erroneous.
    Meza maintains the district court erred in applying the four-level
    enhancement for his leadership role in the offense. Review is for clear error.
    Lyckman, 
    235 F.3d at 237
    . Under Sentencing Guideline § 3B1.1(a), defendant’s
    3
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    offense level should be increased by four levels if he “was an organizer or leader
    of a criminal activity that involved five or more participants or was otherwise
    extensive”.   Meza has not shown that the district court clearly erred in
    determining Meza satisfied these requirements for being a leader of the
    extensive criminal activity. See United States v. Curtis, 
    635 F.3d 704
    , 720 (5th
    Cir.), cert. denied, 
    132 S. Ct. 191
     (2011).
    Meza contends the district court erred in calculating his total offense level
    when it subtracted the three-level, acceptance-of-responsibility reduction from
    an adjusted total offense level of 44, rather than 43, the highest total offense
    level allowed under the advisory Sentencing Guidelines. Meza did not raise this
    issue in district court. In United States v. Arreola-Albarran, 210 F. App’x 441,
    443 (5th Cir. 2006), our court found that plain-error review was appropriate for
    this issue when not raised in district court. Our court then found that the
    district court’s method of calculation was not plain error. Id.; see also United
    States v. Wood, 
    48 F.3d 530
    , **6-7 (5th Cir. 8 Feb. 1995).
    Meza claims his sentence of 324-months’ imprisonment was substantively
    unreasonable because it failed to account adequately for disparity in the
    sentences given his codefendants. When, as here, the district court imposes a
    sentence within a properly calculated guidelines range, the sentence is entitled
    to a presumption of reasonableness. E.g., United States v. Alonzo, 
    435 F.3d 551
    ,
    554 (5th Cir. 2006). The district court heard and specifically considered Meza’s
    sentencing-disparity contention, but concluded that a sentence within the
    recommended Guidelines range was appropriate. Meza has not shown that the
    district court failed to give proper weight to his contention. See United States
    v. Cooks, 
    589 F.3d 173
    , 186 (5th Cir. 2009).
    Lastly, and notwithstanding his specific agreement to a two-level,
    obstruction-of-justice increase to his offense level, Meza asserts that the district
    court erred by increasing his punishment for such conduct. He relies on an
    extradition treaty between the United States and Mexico. (The obstruction-of
    4
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    -justice enhancement stemmed from Meza’s escape from custody, after
    indictment, and subsequent extensive time as a fugitive in Mexico.) Meza raised
    this issue before the district court, which rejected it, noting that Meza was not
    being prosecuted for escaping from custody, and that it could consider such
    evidence as a sentencing factor for the conspiracy offense. Review is de novo.
    E.g., United States v. Cisneros–Gutierrez, 
    517 F.3d 751
    , 764 (5th Cir. 2008).
    Meza’s contention lacks merit. “[The] use of evidence of related criminal conduct
    to enhance a defendant’s sentence for a separate crime within the authorized
    statutory limits does not constitute punishment for that conduct”. Witte v.
    United States, 
    515 U.S. 389
    , 399 (1995). See also United States v. Angleton, 201
    F. App’x 238, 243-44 (5th Cir. 2006) (applying Witte to reject challenge similar
    to Meza’s); United States v. Garrido-Santana, 
    360 F.3d 565
    , 576-79 (6th Cir.
    2004) (same); United States v. Lazarevich, 
    147 F.3d 1061
    , 1063-65 (9th Cir. 1998)
    (same).
    AFFIRMED.
    5