United States v. Michua-Tototzin ( 2023 )

Case: 23-60009 Document: 00516907825 Page: 1 Date Filed: 09/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 25, 2023
No. 23-60009 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Abel Michua-Tototzin,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:22-CR-79-1
______________________________
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Abel Michua-Tototzin contests his jury-trial conviction and sentence
for: conspiracy to unlawfully bring an alien to, or transport an alien within,
the United States; unlawful transportation of an alien within the United
States; and illegal reentry after removal, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(i), (ii), (v)(I), and 1326(a).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-60009 Document: 00516907825 Page: 2 Date Filed: 09/25/2023
No. 23-60009
Michua presents two issues each, regarding his conviction and
sentence. For the former, he maintains the court erred by denying his
challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and admitting
audio recordings and their translations; for the latter, it erred by calculating
the Guidelines range, and imposing a substantively unreasonable sentence.
Each issue fails.
Regarding the Batson challenge, the “trial court’s decision on the
ultimate question of discriminatory intent represents a finding of fact of the
sort accorded great deference on appeal”; our court reviews for clear error.
Hernandez v. New York, 500 U.S. 352, 364 (1991) (discussing Batson, 476 U.S.
at 98 n.21); United States v. Williamson, 533 F.3d 269, 274 (5th Cir. 2008)
(discussing standard of review).
The record supports the Government’s proffered reasons for striking
an Hispanic member of the venire; in short, Michua fails to show they were
pretextual for purposeful discrimination. E.g., United States v. Thompson, 735F.3d 291, 296–99 (5th Cir. 2013) (denying contention Government’s
justification was pretextual); Davis v. Ayala, 576 U.S. 257, 278 (2015) (“It is
understandable for a prosecutor to strike a potential juror who might have
difficulty understanding English.” (citation omitted)); Miller-El v. Dretke,
545 U.S. 231, 241 (2008) (discussing side-by-side comparisons). There was
no clear error. See Thompson, 735 F.3d at 296.
Concerning the admission of the audio recordings and their
translations, Michua asserts the Government failed to establish they were
admissible under the co-conspirator hearsay exception. See Fed. R. Evid.
801(d)(2)(E). Preserved evidentiary rulings are reviewed for abuse of
discretion, subject to a harmless-error analysis. E.g., United States v. Sanjar,
876 F.3d 725, 738 (5th Cir. 2017). Michua arguably did not raise the co-
conspirator issue in district court. If so, review would be only for plain error.
2
Case: 23-60009 Document: 00516907825 Page: 3 Date Filed: 09/25/2023
No. 23-60009
E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). We need
not decide whether the issue was preserved; it fails under either standard of
review.
The record supports the court’s concluding the Government met its
burden to establish the admissibility of the recordings and translations by a
preponderance of the evidence. E.g., United States v. Nelson, 732 F.3d 504,
516 (5th Cir. 2013) (discussing requirements for co-conspirator exception);
United States v. Jones, 873 F.3d 482, 496 (5th Cir. 2017) (“But his statements
during these calls were admissions of a party opponent . . . , and the other call
participants’ statements were admissible to provide context.”); United States
v. Chon, 713 F.3d 812, 818 (5th Cir. 2013) (discussing conspiracy
requirements). There was no abuse of discretion.
Next addressed are Michua’s two sentencing issues. The court
calculated Michua’s advisory Sentencing Guidelines range to be 37 to 46-
months’ imprisonment but varied above that range and sentenced him, inter
alia, to 54 months of imprisonment.
Although post-Booker, the Sentencing Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
For his first of he two sentencing issues, Michua contends the court
erred procedurally by failing to reduce his offense level according to
3
Case: 23-60009 Document: 00516907825 Page: 4 Date Filed: 09/25/2023
No. 23-60009
Guideline § 2L1.1(b)(1)(A), which applies if “the offense was committed
other than for profit”.
Even assuming there is no direct evidence he profited personally,
there is evidence his conspiracy offense was committed for profit. See
Guideline §§ 2L1.1(b)(1), 1B1.3. Therefore, the denial of the reduction was
not erroneous. See United States v. Odom, 694 F.3d 544, 546–47 (5th Cir.
2012); United States v. Chacon, 742 F.3d 219, 220 (5th Cir. 2014) (noting our
court may affirm on any basis supported by the record). Additionally, to the
extent they are challenged, the court did not err by imposing the other
offense-level enhancements. See Odom, 694 F.3d at 546–47.
For the last of the two sentencing issues—the substantive
reasonableness of the above-Guidelines sentence—and as discussed supra,
review is for abuse of discretion. Michua’s contentions fail to show the court
did not consider a factor that should have received significant weight, gave
significant weight to an irrelevant or improper factor, or clearly erred in
balancing the factors. E.g., United States v. Burney, 992 F.3d 398, 400 (5th
Cir. 2021).
AFFIRMED.
4