United States v. Alderete-Davila , 336 F. App'x 438 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 29, 2009
No. 08-50836
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSVALDO ALDERETE-DAVILA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-671-2
Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Osvaldo Alderete-Davila (Alderete) appeals his sentence of two consecutive
terms of imprisonment. Alderete pleaded guilty to possession with intent to
distribute marijuana, conspiracy to import marijuana, and conspiracy to possess
with the intent to distribute marijuana. The charges were based on two
incidents. On September 24, 2005, Border Patrol agents observed Alderete drive
a van to a location near the border with Mexico. Several individuals crossed
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50836
from Mexico into the United States and began to load marijuana into the van.
When the agents approached, the individuals and Alderete fled into Mexico.
Agents seized the van and discovered 467.02 kilograms of marijuana inside. On
October 23, 2005, Alderete drove another van to a location close to the border
with Mexico. Individuals crossed from Mexico into the United States and loaded
bags into the van. Alderete then drove the van to the home of Cipriano Ernesto
Ortiz-Hernandez (Ortiz). After Alderete left, Drug Enforcement Agency agents
searched the van with Ortiz’s consent and discovered 204.12 kilograms of
marijuana.
Alderete argues that the district court erred in the way in which it grouped
the counts of conviction for the calculation of an advisory range of imprisonment
pursuant to the United States Sentencing Guidelines (U.S.S.G.). The district
court properly grouped all four counts of conviction together to determine the
base offense level. Under U.S.S.G. §§ 3D1.1 and 3D1.2(b) and (d), the counts
were grouped because they involved substantially the same harm. See United
States v. Lopez-Urbina, 434 F.3d 750, 764 (5th Cir. 2005). They furthered the
common criminal objective of trading in narcotics and were continuous in nature.
See id. Alderete fails to show that the district court plainly erred in grouping all
four offenses to determine the offense level for calculating the guidelines range
of imprisonment. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Alderete further argues that the district court committed procedural error
when it ordered the sentences to run consecutively and that the sentence is
unreasonable because the district court failed to properly consider the
sentencing factors of 18 U.S.C. § 3553(a). In United States v. Saldana, 427 F.3d
298, 308-09 n.41 (5th Cir. 2005), we held that “a district court has discretion
under 18 U.S.C. § 3584 to depart upwardly by running sentences consecutively,
even when U.S.S.G. § 5G1.2 would otherwise mandate that the sentences run
concurrently.” See also United States v. Ronquillo, 508 F.3d 744, 750-51 (5th
Cir. 2007), cert. denied, 128 S. Ct. 2458 (2008). Although Alderete’s sentence is
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No. 08-50836
an upward departure, see United States v. Martinez, 274 F.3d 897, 903-05 (5th
Cir. 2001) (holding that a consecutive sentence imposed contrary to the
Guidelines is presumed to be a departure), the district court sufficiently
explained the sentence, with reference to the § 3553(a) sentencing factors.
In setting the sentence, the district court reviewed its familiarly with
narcotics trafficking cases and sentencing in such cases. The district court noted
that Alderete had an opportunity to desist from further criminal conduct
following his escape into Mexico after the September 24, 2005, incident, but
instead of being deterred from further conduct Alderete returned to the narcotics
trade. Moreover, the district court noted the large quantity of marijuana
involved and the fact that the charges stemmed from two incidents. The district
court need not “‘engage in robotic incantations’” of each statutory factor. United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (citation omitted). The
district court’s comments indicate that it considered the § 3553(a) factors in
setting the sentence and that the sentence, although an upward departure, was
responsive to the § 3553(a) factors and the specifics of these offenses. Alderete
has failed to show that his sentence was unreasonable. See United States v.
Gall, 128 S. Ct. 586, 597 (2007).
Alderete also challenges the district court’s denial of a two-level downward
adjustment for being a minor participant in the offense. Although U.S.S.G.
§ 3B1.2 permits a district court to decrease a defendant’s offense level by two
levels if the defendant was a minor participant in the offense, the reduction
applies only when a defendant is substantially less culpable than the average
participant. United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005).
“This court has affirmed a finding that couriers whose only role in a drug offense
was to transport a large amount of marijuana in an automobile are not entitled
to minimal, or even minor, participant status.” United States v. Nevarez-Arreola,
885 F.2d 243, 245 (5th Cir. 1989) (citation omitted).
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The evidence to which Alderete admitted showed that he was the driver
of the van on September 24, 2005, and October 23, 2005. In both instances, the
evidence indicated that he deliberately drove to a location near the United States
border with Mexico. With Alderete’s knowledge, those vans were loaded with
marijuana. In September, Alderete had intended to deliver the van loaded with
marijuana to another individual, had Border Patrol agents not interfered. In
October, Alderete delivered the van loaded with marijuana to Ortiz. Alderete
admitted to his actual involvement in these offenses and § 3B1.2 does not
require a reduction in his base offense level. See United States v. Atanda, 60
F.3d 196, 199 (5th Cir. 1995). Alderete has failed to show that the district
clearly erred in denying the offense level adjustment. See Villanueva, 408 F.3d
at 203 n.9.
For these reasons, we AFFIRM the decision of the district court.
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