United States v. Felipe Rivera-Paredes

Case: 16-41366 Document: 00514146157 Page: 1 Date Filed: 09/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41366 FILED
Summary Calendar September 7, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
FELIPE RIVERA-PAREDES,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-1589-1
Before BARKSDALE, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Felipe Rivera-Paredes appeals his 210-month sentence, imposed
following his guilty-plea convictions for conspiracy to possess, with intent to
distribute, marijuana, and conspiracy to possess, with intent to distribute,
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B).
Rivera claims: the court erred by enhancing his offense level according to
* Pursuant to 5th Cir. R. 47.5, the court has determined this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 16-41366 Document: 00514146157 Page: 2 Date Filed: 09/07/2017
No. 16-41366
Sentencing Guideline § 3B1.1(a), for his role as an organizer or leader; and his
sentence is grossly disproportionate under the Eighth Amendment.
Regarding the enhancement, to which Rivera objected in district court,
its determination a defendant is an organizer or leader under Guideline
§ 3B1.1(a) is a factual finding; such findings are reviewed for clear error. E.g.,
United States v. Cabrera, 288 F.3d 163, 173 (5th Cir. 2002). In determining a
defendant’s role in the offense, “a district court is permitted to draw reasonable
inferences from the facts, and these inferences are fact-findings reviewed for
clear error”. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). A
factual finding is not clearly erroneous if, inter alia, it “is plausible in light of
the record as a whole”. Id.
The record shows: there were at least five participants in the criminal
enterprise; and sufficient evidence supports the court’s leadership adjustment.
Such evidence included Rivera’s recruitment of individuals to participate in
the conspiracy; financing of the illegal operation; control over the Mexican
operation; and control over at least one member of the conspiracy. U.S.S.G.
§ 3B1.1(a). Accordingly, the finding that Rivera was a leader or organizer for
the purposes of Guideline § 3B1.1(a), was not clearly erroneous.
As for Rivera’s claim that his 210-month sentence is grossly
disproportionate under the Eighth Amendment, he did not raise this issue in
district court; therefore, review is only for plain error. E.g., United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Rivera
must show a forfeited plain (clear or obvious) error that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we
have the discretion to correct the reversible plain error, but, generally, should
do so only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id.
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Case: 16-41366 Document: 00514146157 Page: 3 Date Filed: 09/07/2017
No. 16-41366
Rivera fails to establish the requisite clear or obvious error. His within-
Guidelines sentence was not grossly disproportionate to the severity of his
controlled-substance offenses. United States v. Mills, 843 F.3d 210, 217 (5th
Cir. 2016), cert. denied, 137 S. Ct. 1601 (2017); see also Rummel v. Estelle, 445
U.S. 263, 265-67 (1980).
AFFIRMED.
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