United States v. De La Cruz Vela ( 2023 )

Case: 22-40402 Document: 00516887006 Page: 1 Date Filed: 09/07/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-40402 September 7, 2023
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Alfredo De La Cruz Vela,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:21-CR-308-1
______________________________
Before Engelhardt, Willett, and Oldham, Circuit Judges.
Per Curiam:*
Alfredo De La Cruz Vela appeals the sentence imposed following his
guilty plea conviction for conspiring to possess with intent to distribute 50
grams or more of methamphetamine. De La Cruz Vela argues that the district
court erred by (1) imposing a two-level enhancement because he maintained
a residence—located at 3643 Rey Enrique Drive in Brownsville, Texas—for
purposes of manufacturing or distributing a controlled substance, see
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40402 Document: 00516887006 Page: 2 Date Filed: 09/07/2023
U.S.S.G. § 2D1.1(b)(12), and (2) imposing a four-level enhancement because
he was an organizer or leader of the criminal activity, see U.S.S.G. § 3B1.1(a).
De La Cruz Vela further asserts that his 240-month below guidelines
sentence is substantively unreasonable.
This court reviews the district court’s “interpretation and application
of the Guidelines de novo, and its factual findings for clear error.” United
States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (per curiam). “A factual
finding is not clearly erroneous if it is plausible in light of the record as a
whole.” Id. “We will find clear error only if a review of the record results in
a definite and firm conviction that a mistake has been committed.” Id.(internal quotation marks and citation omitted).
The district court properly adopted and relied on De La Cruz Vela’s
PSR to impose enhancements under the Guidelines. See Zuniga, 720 F.3d at
591; United States v. Rico, 864 F.3d 381, 386 (5th Cir. 2017). ‘Generally, a
PSR bears sufficient indicia of reliability to be considered as evidence [at
sentencing].’ Zuniga, 720 F.3d at 591 (internal quotation marks and citation
omitted). De La Cruz Vela’s PSR bears those indicia. It does not contain
‘[b]ald, conclusionary statements,’ and De La Cruz Vela failed to
demonstrate that the facts in the PSR are ‘materially untrue, inaccurate or
unreliable.’ See id. (alteration in original) (internal quotation marks and
citation omitted). Accordingly, the district court could consider the facts in
the PSR for sentence enhancements. See id. (internal quotation marks and
citation omitted).
The district court did not clearly err by imposing an enhancement
pursuant to § 2D1.1(b)(12). See Zuniga, 720 F.3d at 590. As noted in the PSR,
a confidential source reported that De La Cruz Vela controlled regular
narcotics storage at 3643 Rey Enrique Drive and directed others to distribute
narcotics that were stored at the house. Such behavior supports the §
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2D1.1(b)(12) enhancement. See § 2D1.1, comment. (n.17). Accordingly, we
are not left with “a definite and firm conviction that a mistake has been
committed.” Zuniga, 720 F.3d at 590.
Nor did the district court clearly err by imposing an enhancement
pursuant to § 3B1.1(a). See id. The PSR provides ‘detailed and consistent
information’ about De La Cruz Vela’s substantial role as an organizer or
leader. See id. at 592. [referring to Zuniga] De La Cruz Vela planned and
organized the distribution of narcotics in the United States, found buyers for
the narcotics in the United States, directed others to recruit accomplices, and
led two other participants in the conspiracy. See § 3B1.1, comment. (n.2),
(n.4). The PSR contains additional facts indicating that De La Cruz Vela
retrieved vehicles containing narcotics once they arrived in the United
States, collected money from load transporters after a successful job, paid
drivers to transport vehicles to Mexico to deliver drug proceeds, made
decisions regarding logistics for smuggling events, employed multiple
people, and was referred to as “the boss.” Id. In light of these facts, it is more
than plausible that De La Cruz Vela was a leader or organizer of narcotics
smuggling. See Zuniga, 720 F.3d at 590.
We review De La Cruz Vela’s claim that his sentence is substantively
unreasonable for abuse of discretion. United States v. Scott, 654 F.3d 552, 555
(5th Cir. 2011); see also Holguin-Hernandez v. United States, 140 S. Ct. 762,
766–77 (2020). A properly calculated sentence within or below the calculated
guidelines range is entitled to a presumption of reasonableness. United States
v. Simpson, 796 F.3d 548, 557 & n.51 (5th Cir. 2015). “Th[is] presumption is
rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). De La Cruz Vela fails to rebut the presumption of reasonableness
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given to his below-guidelines sentence because he does not show that the
district court failed to consider that he cooperated with the Government to
the detriment of his safety and welfare. See id.The judgment of the district court is AFFIRMED.
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