United States v. Medrano , 260 F. App'x 669 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 07-10326
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ERNESTO MEDRANO, also known as Big Ed
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-75-18
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ernesto Medrano appeals the sentence imposed following his conviction
for violating 18 U.S.C. § 846 by conspiring to distribute and possess with intent
to distribute more than five kilograms of cocaine. We affirm.
Medrano contends that the district court infringed his Sixth Amendment
rights and erred by sentencing him based on its own factual findings. He also
challenges the presumption of reasonableness that attaches to a
within-guidelines sentence. We have previously recognized “that a sntence
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10326
within a properly calculated Guideline range is presumptively reasonable.”
United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006). Recently, the
Supreme Court has indicated its agreement that when reviewing a sentence
within the Guidelines range, an appellate court may “apply a presumption of
reasonableness.” United States v. Gall, 2007 WL 4292116, at *7 (U.S. Dec. 10,
2007) (citing Rita v. United States, 127 S. Ct. 2456, 2462 (2007)). Medrano’s
challenge to the presumption fails.
Medrano also contends that the district court erred in finding that he had
exercised a leadership role in a criminal activity. We conclude that the record
supports the enhancement of Medrano’s sentence under U.S.S.G. § 3B1.1(c) for
enlisting and arranging for another participant to undertake specific activity to
accomplish delivery of an illegal substance or to facilitate receipt of payment, by
Medrano or his designee, for such a substance. By causing or attempting to
cause another to take criminal action, Medrano went beyond his self-styled role
as a mere messenger; he exerted influence over another participant. “When the
evidence demonstrates that a defendant directed another in his drug trafficking
activities . . . , sentence enhancement under § 3B1.1(c) is appropriate.” United
States v. Turner, 319 F.3d 716, 725 (5th Cir. 2003); § 3B1.1, comment. (n.2).
We also reject Medrano’s contention that his criminal history was
improperly calculated because the district court considered prior sentences to
have arisen in cases that were not related to each other. Separate docket
numbers were used in the pertinent cases, and Medrano presented no evidence
that a formal order of consolidation was entered in any of them. See United
States v. Kates, 174 F.3d 580, 584 (5th Cir. 1999) (two offenses involving delivery
of cocaine to undercover agents that occurred one week apart were not related
when no formal consolidation order was issued, even though defendant was
sentenced by same judge on same date for each offense and sentences were
concurrent). Consequently, the district court did not err by rejecting Medrano’s
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No. 07-10326
contentions concerning the relatedness of his convictions for the purpose of
calculating his criminal history.
Additionally, we find no error in the district court’s calculation of drug
quantity. As Medrano acknowledged in the district court, his base offense level
remains the same no matter whether the quantity of drugs he conspired to
possess was that contained in the probation officer’s account or that contained
in his own.
The judgment of the district court is AFFIRMED.
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