United States v. Esquivel-Padilla , 214 F. App'x 395 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 12, 2007
Charles R. Fulbruge III
Clerk
No. 05-41831
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERAFIN ESQUIVEL-PADILLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-106-1
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Serafin Esquivel-Padilla (Esquivel) appeals his guilty-plea
conviction and sentence for conspiracy to possess with intent to
distribute more than 1,000 kilograms of marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Finding no error, we
affirm.
Esquivel first asserts that his sentence violates the rule
set forth in United States v. Booker, 543 U.S. 220 (2005),
because the district court made factual findings at sentencing
and sentenced him under the then-mandatory Sentencing Guidelines.
*
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this opinion should not be published and is not precedent except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.
No. 05-41831
-2-
Esquivel preserved these arguments by making an objection
pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and we
review for harmless error. See United States v. Rodriguez-Mesa,
443 F.3d 397, 404 (5th Cir. 2006).
The district court unequivocally stated that, absent the
Federal Sentencing Guidelines, it would impose the same sentence.
This statement is sufficient to satisfy the Government’s burden
of demonstrating that the error was harmless beyond a reasonable
doubt. See United States v. Saldana, 427 F.3d 298, 314-15 (5th
Cir.), cert. denied, 126 S. Ct. 810 (2005).
Esquivel’s argument that the alternative non-mandatory
sentence was unreasonable because the district court did not
consider all the factors set forth in 18 U.S.C. § 3553(a) also
fails. The district court stated that it had considered a number
of such factors, namely the nature of the offense, the offender
characteristics, and the need for punishment, deterrence, and
rehabilitation. See 18 U.S.C. § 3553(a)(1), (2)(A), (B), (D).
Further, the only § 3553(a) factor to which Esquivel points is
§ 3553(a)(6), which directs courts to consider “unwarranted
sentencing disparities among defendants with similar records who
have been found guilty of similar conduct.” Although Esquivel’s
co-defendants received lower sentences, the record is silent as
to the reasons for those sentences. Thus, we cannot determine
whether the disparities were unwarranted under § 3553(a)(6).
Esquivel has not shown that the sentence was unreasonable.
No. 05-41831
-3-
In his final point of error, Esquivel contends that the
district court committed plain error by accepting his guilty plea
without an adequate factual basis. His argument is premised on
the prosecutor’s misstatement that 1,375 pounds, rather than
1,375 kilograms, of marijuana were involved. Thus, he asserts,
the factual basis does not support a conviction under 21 U.S.C.
§ 841(b)(1)(A), which provides penalties of 10 years to life, but
only a lesser offense under § 841(a)(1), with its penalties of
five to 40 years.
As Esquivel concedes, because he failed to object, we review
for plain error. See United States v. Marek, 238 F.3d 310, 315
(5th Cir. 2001). Esquivel has not met his burden. The record as
a whole, including the trial testimony, establishes that more
than 1,000 kilograms were seized on the date in question.
Esquivel was well aware of this information at the time he
pleaded guilty, he agreed that the conspiracy involved more than
1,000 kilograms of marijuana, and he knew that he faced
punishment of 10 years to life. Esquivel has failed to show that
the misstatement by the Government’s attorney affected his
substantial rights, i.e., that he would not have pleaded guilty
but for the error, see United States v. Reyes, 300 F.3d 555, 559
(5th Cir. 2002), nor has he shown that we should exercise our
discretion to correct any error. See Marek, 238 F.3d at 315.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.