United States v. Manuel Velasquez

Case: 16-50531 Document: 00514184824 Page: 1 Date Filed: 10/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-50531 FILED
Summary Calendar October 5, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MANUEL GERARDO VELASQUEZ, also known as Shortman, also known as
Shorty,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-1726-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
A jury convicted Manuel Gerardo Velasquez of (i) one count of knowingly
engaging in a continuing criminal enterprise, a violation of 21 U.S.C. § 848;
(iii) one count of conspiracy to launder money; (iii) seven counts of possession
with the intent to distribute marijuana; and (iv) two counts of knowingly using
a place for the manufacture or distribution of marijuana. The district court
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-50531
sentenced Velasquez to concurrent sentences of life imprisonment on six
counts, 240 months of imprisonment on three counts, and 60 months of
imprisonment on two counts. Velasquez challenges his § 848 continuing
criminal enterprise conviction for lack of sufficient evidence. He asserts that
the district court erred in calculating the drug quantity used to determine his
base offense level under U.S.S.G. § 2D1.1(c) and that his life sentence is
substantively unreasonable. Because Velasquez did not renew his motion for
a judgment of acquittal at the close of all the evidence, we review the
sufficiency of the evidence for a manifest miscarriage of justice. See United
States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2011) (en banc). Reversal is
warranted only if “the record is devoid of evidence pointing to guilt or if the
evidence is so tenuous that a conviction is shocking.” Id. (internal quotation
marks and citation omitted).
To prove a violation of § 848, the Government must establish that “(1)
the defendant organized, supervised, or managed five or more persons (2) in a
continuing series of drug violations (3) from which the defendant obtained
substantial income.” United States v. Fuchs, 467 F.3d 889, 904 (5th Cir. 2006);
see also § 848. Velasquez contends that the evidence was not sufficient to
establish that he obtained substantial income from the drug trafficking
operation.
“[T]he requirement that a defendant obtain substantial income from
drug trafficking is satisfied by showing that many thousands of dollars
changed hands, and that some was received by the defendant.” United States
v. Gonzalez, 866 F.2d 781, 784 (5th Cir. 1989); see United States v. Bolts, 558
F.2d 316, 321 (5th Cir. 1977). This element can be satisfied when the record
shows the defendant “had no legitimate source of income during the period
covered by the indictment, yet paid his living expenses and obtained a steady
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supply” of illegal drugs. United States v. Lewis, 476 F.3d 369, 379 (5th Cir.
2007).
The evidence established that Velasquez was the leader of a drug
trafficking operation that transported thousands of pounds of marijuana and
produced millions of dollars and that he did not have a legitimate source of
income and earned money only from drug trafficking. The evidence, when
viewed in the light most favorable to the Government sufficiently established
that Velasquez obtained substantial income from drug trafficking; Velasquez
has failed to show that “the record is devoid of evidence of guilt or . . . the
evidence is so tenuous that a conviction is shocking.” Delgado, 672 F.3d at 331.
Because Velasquez did not object to the presentence report’s drug
quantity calculations or the substantive reasonableness of his life sentence
below, our review is for plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009); United States v Peltier, 505 F.3d 389, 392
(5th Cir. 2007). He must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
Velasquez’s PSR provided that he should be held accountable for
26,197.37 kilograms of marijuana. The district court adopted the PSR’s
findings. United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal
quotation marks and citation omitted) (district court may adopt facts in PSR
without inquiry if facts have adequate evidentiary basis and sufficient
reliability and defendant does not present rebuttal evidence or demonstrate
that information in PSR is unreliable). Generally, “a PSR bears sufficient
indicia of reliability, such that a sentencing judge may consider it as evidence
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in making the factual determinations required by the Sentencing Guidelines.”
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). Velasquez did not
present evidence to rebut the PSR’s findings, and his generalized and
conclusory statement that the PSR’s drug quantity findings were based on
“‘guesses’ by cooperating individuals/co-defendants” fails to establish that the
PSR lacked an adequate evidentiary basis and that the district court
committed an error, much less a clear or obvious error, in adopting the PSR’s
drug quantity findings. See United States v. Montgomery, 747 F.3d 303, 312
(5th Cir. 2014).
“Appellate review for substantive reasonableness is highly deferential,
because the sentencing court is in a better position to find facts and judge their
import under the [18 U.S.C. § 3553(a)] factors with respect to a particular
defendant.” United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011) (internal
quotation marks and citation omitted). A sentence within the guidelines range
is presumptively reasonable, and “[t]he 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).
The district court considered the mitigating circumstances articulated
by counsel and considered the § 3553(a) factors. Velasquez has not
demonstrated that his sentence failed to account for a sentencing factor that
should have received significant weight. He has not rebutted the presumption
that the within-guidelines sentence is reasonable. See United States v. Diaz,
637 F.3d 592, 604 (5th Cir. 2011); United States v. Ruiz, 621 F.3d 390, 398 (5th
Cir. 2010). Accordingly, Velasquez has failed to establish that the district court
plainly erred in sentencing him to a life term of imprisonment.
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The life sentences Velasquez received for Counts 7, 10, and 11 exceed the
statutory maximum of 480 months of imprisonment. 21 U.S.C. § 841(b)(1)(B).
The Government seeks reformation of the judgment to 480 months as to each
of these convictions. The imposition of life sentences for Counts 7, 10, and 11
comports with the district court’s oral pronouncement of the sentences and are
not mere “clerical errors” subject to reformation as contemplated by Federal
Rule of Criminal Procedure 36. See United States v. Douglas, No. 15-10084,
2017 WL 2544526, 3 (5th Cir. June 9, 2017) (not designated for publication).
Accordingly, it is ordered that the sentences imposed on Counts 7, 10, and 11
are VACATED, and the case is REMANDED to the district court for
resentencing as to those counts only, consistent with this opinion. See United
States v. Carrion-Caliz, 944 F.2d 220, 222 (5th Cir. 1991).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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