United States v. Mora ( 2021 )

Case: 20-10540 Document: 00515814094 Page: 1 Date Filed: 04/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 8, 2021
No. 20-10540 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Carlos Mora,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-362-17
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Carlos Mora appeals the 180-month, below-guidelines sentence
imposed by the district court following his guilty-plea conviction for
conspiring to possess with intent to distribute a controlled substance.
“Sentences based upon erroneous and material information or assumptions
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10540 Document: 00515814094 Page: 2 Date Filed: 04/08/2021
No. 20-10540
violate due process.” United States v. Gentry, 941 F.3d 767, 788 (5th Cir.
2019) (internal quotation marks and citation omitted), cert. denied sub nom.
Bounds v. United States, 140 S. Ct. 2731 (2020). We review sentences for
reasonableness by engaging in a bifurcated review. Gall v. United States, 552
U.S. 38, 51 (2007). We “must first ensure that the district court committed
no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range . . . [or] selecting a sentence based on clearly
erroneous facts.” Id. Next, we will “consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard . . . , tak[ing]
into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id.However, when a defendant fails to preserve his argument by raising
it in the district court, plain error review applies. Puckett v. United States, 556
U.S. 129, 135 (2009); United States v. Key, 599 F.3d 469, 474 (5th Cir. 2010).
Under plain error review, we determine whether there was a clear or obvious
legal error which affected the defendant’s substantial rights. Puckett, 556
U.S. at 135. If the defendant makes this showing, we have the discretion to
remedy the error but should do so “only if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
brackets, quotation marks, and citation omitted).
While Mora’s arguments before the district court may have preserved
a substantive reasonableness argument relating to U.S.S.G. § 3B1.2, he did
not preserve the instant procedural argument challenging the miscalculation
of his guidelines range based upon the denial of a § 3B1.2(b) minor-role
reduction; accordingly, we review his procedural challenge for plain error
only. See Puckett, 556 U.S. at 135; Gall, 552 U.S. at 51. As Mora does not
even attempt to meet the plain error standard, he has abandoned any such
contention. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Fed.
R. App. P. 28(a)(8). In any event, Mora cannot show error, plain or
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No. 20-10540
otherwise. See Puckett, 556 U.S. at 135; United States v. Castro, 843 F.3d 608,
612-14 (5th Cir. 2016).
Mora properly concedes that his challenge to the U.S.S.G.
§ 2D1.1(b)(5) enhancement based on his lack of involvement with, or
knowledge of, the drug importation is foreclosed. See United States v. Foulks,
747 F.3d 914, 915 (5th Cir. 2014); United States v. Serfass, 684 F.3d 548, 550-
53 (5th Cir. 2012). We review for plain error his contention, raised for the
first time on appeal, that the Government failed to proffer sufficient evidence
showing that the methamphetamine at issue was imported. See Puckett, 556
U.S. at 135. Once again, Mora does not even attempt to satisfy the applicable
standard of review, and he has therefore abandoned any argument that the
district court committed plain error. See Yohey, 985 F.2d at 224-25; Fed. R.
App. P. 28(a)(8). In any event, Mora cannot show error, plain or otherwise.
See Puckett, 556 U.S. at 135.
We likewise review for plain error Mora’s arguments that the district
court violated his due process rights, and imposed a procedurally and
substantively unreasonable sentence, by adopting the finding contained in the
presentence report (PSR) that the methamphetamine for which he was held
responsible was 97.8% pure. See United States v. Rojas, 812 F.3d 382, 413 (5th
Cir. 2016). “[D]istrict courts may extrapolate the quantity of drugs from any
information that has sufficient indicia of reliability to support its probable
accuracy, and may consider estimates of the quantity of drugs for sentencing
purposes.” United States v. Dinh, 920 F.3d 307, 313 (5th Cir. 2019) (internal
brackets, quotation marks, and citation omitted). Moreover, “sentencing
courts are permitted to extrapolate the nature and quantity of drugs involved
in an offense based on lab reports that tested only a sample of the overall
quantity.” Id. “A [PSR] generally bears sufficient indicia of reliability to be
considered as evidence,” and, [i]n the absence of rebuttal evidence, a
sentencing court may properly rely on the PSR and adopt the PSR’s factual
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findings as its own.” United States v. Guzman-Reyes, 853 F.3d 260, 266 (5th
Cir. 2017).
Contrary to Mora’s assertions, a district court’s drug-quantity
determination may be based on an extrapolation of purity from a limited
number of samples when, as here, those samples were obtained from the
same source as the remaining drugs. See United States v. Rodriguez, 666 F.3d
944, 947 (5th Cir. 2012). Further, Mora cites no evidence showing that the
purity level of the methamphetamine for which he was held responsible was
below 80%, as would be required to change his base offense level. See id.;
§ 2D1.1(c)(1) & Note (C). Given the failure of Mora’s purity arguments, we
need not address his contention that the district court erred by including a
20.4 kilogram shipment of methamphetamine in the drug-quantity
calculation; the error, even if proven, would not affect the applicable
guidelines range and would therefore be harmless. See United States v. Chon,
713 F.3d 812, 822 (5th Cir. 2013).
The judgment of the district court is AFFIRMED.
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