United States v. Cardenas , 134 F. App'x 751 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-11062
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE A CARDENAS
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-57-ALL-Y
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Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Jose A. Cardenas pleaded guilty to bribery of a public
official, in violation of 18 U.S.C. § 201(b)(1)(A). Under the
Sentencing Guidelines, the district court sentenced Cardenas to
24 months in prison and to three years of supervised release.
At the request of the Government, the court also issued an
alternative judgment, in the event that the Supreme Court
extended its holding in Blakely v. Washington, 124 S. Ct. 2531
(2004), to the Sentencing Guidelines and effectively rendered the
*
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this opinion should not be published and is not precedent except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. 04-11062
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Guidelines advisory. In the alternative judgment, the district
court imposed the same 24-month prison term, “if there is no
parole,” or three years if there was a possibility of parole
under an advisory sentencing scheme.
As an initial matter, we observe sua sponte that Cardenas’s
written plea agreement contained a waiver-of-appeal provision.
Because the magistrate judge who took Cardenas’s plea did not
call specific attention to this provision, however, we conclude
that the provision does not deprive us of jurisdiction to address
the merits of Cardenas’s appeal. See FED. R. APP. P. 11(b)(1)(N);
United States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002);
United States v. Robinson, 187 F.3d 516, 518 (5th Cir. 1999).
Cardenas contends that the district court erred in imposing
an eight-level offense-level increase under U.S.S.G.
§ 2C1.1(b)(2)(B), on the ground that the offense involved a
“payment for the purpose of influencing an elected official or
any official holding a high-level decision-making or sensitive
position.” After the Supreme Court’s decision in United States
v. Booker, 125 S. Ct. 738 (2005), this court has held that the
application and interpretation of the guidelines continue be
reviewed de novo and that factual findings be reviewed for clear
error. See United States v. Villegas, 404 F.3d 355, ,
No. 03-21220 (5th Cir. Mar. 17, 2005), 2005 WL 627963 at
*2; United States v. Villanueva, F.3d , No. 03-20812
(5th Cir. Apr. 27, 2005), 2005 WL 958221 at **8-9 & n.9.
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Cardenas, who worked as a tax preparer, admitted that he
offered $1,000 to Internal Revenue Service (“IRS”) agent John
McMicken, in order to reduce the tax liability of a pair of his
clients following an audit conducted by McMicken. Although
McMicken’s role as a revenue agent was not supervisory, see
U.S.S.G. § 2C1.1, comment. (n.1), his job duties did entail
decision-making authority in the matter of the collection of
substantial sums of tax revenue. We conclude that the district
court did not err in determining that Agent McMicken occupied a
“sensitive” position and that the U.S.S.G. § 2C1.1(b)(2)(B)
increase was applicable. See United States v. Snell, 152 F.3d
345, 347-48 (5th Cir. 1998); United States v. Reneslacis,
349 F.3d 412, 416 (7th Cir. 2003).
Now citing Booker, Cardenas continues to argue, as he
did below, that the Sentencing Guidelines increases were
unconstitutional because they were based on factors that were
neither submitted to a jury for proof nor admitted by Cardenas.
Insofar as the district court’s primary judgment was based on a
pre-Booker mandatory Guidelines regime, Cardenas is correct. See
Booker, 125 S. Ct. at 756. Cardenas overlooks, however, the
district court’s issuance of an identical alternative sentence,
which was based on speculation that the Supreme Court would
declare the mandatory Guidelines scheme unconstitutional and
require an advisory sentencing regime. Where, as here, a
defendant has preserved a Booker challenge in the district court,
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“we will ordinarily vacate the sentence and remand, unless we can
say the error is harmless under Rule 52(a) of the Federal Rules
of Criminal Procedure.” United States v. Mares, 402, 511, 520
n.9 (5th Cir. 2005). In this case, based on the alternative
judgment, the Government has met its burden of demonstrating
beyond a reasonable doubt that the Sixth Amendment violation at
issue did not contribute to the sentence that Cardenas received.
See United States v. Akpan, F.3d , No. 03-20875, 2005 WL
852416 at *12 (5th Cir. Apr. 14, 2005). Accordingly, we AFFIRM
Cardenas’s sentence.
AFFIRMED.