United States v. Parra

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 21, 2009
No. 07-51307
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALFONSO PACHECO PARRA, also known as Alfonso Parra,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-100-ALL
Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alfonso Pacheco Parra appeals the 121-month sentence imposed following
his guilty-plea conviction for money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i). Parra argues that the district court erred by applying
U.S.S.G. § 2S1.1(a)(1) rather than § 2S1.1(a)(2) because the offense level for the
underlying offense cannot be determined. Parra contends that the offense level
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-51307
cannot be determined because the drug types and drug amounts involved in the
underlying offense are unknown.
Ordinarily, the abuse-of-discretion standard applies to appellate review of
sentencing decisions. Gall v. United States, 128 S. Ct. 586, 594 (2007). Neither
Gall, Rita v. United States, [127 S. Ct. 2456 (2007)], nor Kimbrough v. United
States, [128 S. Ct. 558 (2007)] purport to alter [this court’s] review of the district
court’s construction of the Guidelines or findings of fact.” United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This court reviews the
district court’s application of the Sentencing Guidelines de novo and its findings
of fact for clear error. United States v. Charon, 442 F.3d 881, 887 (5th Cir. 2006).
A factual finding is clearly erroneous only if, based on the entirety of evidence,
the reviewing court is left with the definite and firm conviction that a mistake
has been made. United States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006). A
factual finding is not clearly erroneous if it is plausible in light of the entire
record. Id.Parra failed to establish the information contained in the PSR was
materially untrue. See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
The district court therefore did not clearly err in relying on the drug types and
quantities set forth in the PSR. See United States v. Vital, 68 F.3d 114, 120 (5th
Cir. 1995). Because drug types and quantities were known, the underlying
offense level was determinable. Accordingly, the district court did not clearly err
in applying § 2S1.1(a)(1) rather than § 2S1.1(a)(2).
While Parra’s appeal was pending, the Supreme Court decided Cuellar v.
United States, 128 S. Ct. 1994 (2008). Parra concedes that, in light of Cuellar,
the factual basis was sufficient to support his money laundering conviction
because it set forth evidence indicating why he moved the money. Because
Parra intentionally relinquished his right to challenge the sufficiency of the
factual basis, this issue is unreviewable. See United States v. Musquiz, 45 F.3d
2No. 07-51307
927, 931 (5th Cir. 1995). Accordingly, the judgment of the district court is
AFFIRMED.
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