United States v. Barragan-Balderas

Case: 21-40381 Document: 00516175860 Page: 1 Date Filed: 01/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 21, 2022
No. 21-40381
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Eduardo Nicolas Barragan-Balderas,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-1168-2
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Eduardo Nicolas Barragan-Balderas pleaded guilty to conspiring to
possess with intent to distribute five kilograms or more of cocaine and
conspiring to engage in money laundering. The district court sentenced him
within the applicable guidelines range to 235 months of imprisonment on
*
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opinion should not be published and is not precedent except under the limited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.
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No. 21-40381
each count, to run concurrently, and five years of supervised release.
Barragan-Balderas now appeals his sentence, arguing that the district court
erred when it imposed a three-level enhancement pursuant to
U.S.S.G. § 3B1.1(b) for being a manager or supervisor of Jose Hinojosa’s
drug trafficking organization.
Barragan-Balderas argues that his admissions at rearraignment
regarding his maintenance of the drug trafficking organization’s financial
records and his actions gleaned from recorded conversations as set forth in
the presentence report (PSR) did not rise to the level of a manager or
supervisor under § 3B1.1(b). Because he preserved this argument, we review
the district court’s factual findings for clear error. See United States v.
Fillmore, 889 F.3d 249, 255 (5th Cir. 2018); United States v. Medina-Anicacio,
325 F.3d 638, 642 (5th Cir. 2003).
The district court could plausibly infer that Barragan-Balderas
exercised supervisory or managerial responsibility within the drug trafficking
organization in relation to the distribution and transportation of cocaine and
money proceeds between Mexico and Houston, Texas. See United States v.
Guzman-Reyes, 853 F.3d 260, 265 (5th Cir. 2017). Information gathered from
recorded conversations, which Barragan-Balderas acknowledges had
sufficient indicia of reliability, showed that Barragan-Balderas frequently
coordinated, communicated, and checked in with individuals within the
organization who were tasked with delivering drugs and transporting drug
proceeds. See United States v. Reagan, 725 F.3d 471, 494 (5th Cir. 2013);
§ 3B1.1, comment. (n.4). The recordings and post-arrest statements likewise
showed that Barragan-Balderas instructed Ricardo Cuellar to retrieve drug
proceeds in Houston and transport the proceeds to Mexico and that
Barragan-Balderas was a point of contact for Cuellar and another
coconspirator during the search of their vehicle which was loaded with drug
proceeds. See § 3B1.1, comment. (n.2). In addition, Barragan-Balderas
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admitted that he was responsible for maintaining records of the
organization’s inventory and finances. See United States v. Rose, 449 F.3d
627, 633 (5th Cir. 2006); § 3B1.1, comment. (n.2). The district court’s
factual finding that Barragan-Balderas was a manager or supervisor was
plausible in light of the record as a whole and does not give rise to a firm and
definite conviction that a mistake has been committed. See United States v.
Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011).
Barragan-Balderas further argues that particular statements in the
PSR were not reliable evidence to support the application of the
enhancement because the statements were conclusory and lacked a sufficient
evidentiary basis. He specifically points to the PSR’s statements regarding
the actions taken on his behalf that “suggested” that he was equally as
responsible as Hinojosa for the operation, his direction of individuals
involved in the organization, his recruitment of several individuals into the
organization, and his characterization as Hinojosa’s righthand man. He did
not challenge the reliability of the PSR’s statements in the district court, so
our review is for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009); United States v. Sandlin, 589 F.3d 749, 756 (5th Cir. 2009).
We have held that “the district court may properly find sufficient
reliability on a [PSR] which is based on the results of a police investigation.”
United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991). We also have found
no error where those facts were “based on the statements of the investigative
agents assigned to the case.” Id. Here, the probation officer indicated that
the information in the PSR was obtained through an investigation conducted
by the Federal Bureau of Investigation and assisted by Immigration and
Customs Enforcement, the Internal Revenue Service, the Drug Enforcement
Administration, and multiple state law enforcement agencies. The PSR also
recounted the observations of law enforcement agents and information
obtained from coconspirators following their arrests. Barragan-Balderas has
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failed to show plain error regarding the reliability of the PSR. See Puckett, 556
U.S. at 135.
AFFIRMED.
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