United States v. Javier Flores

Case: 15-41267 Document: 00513495854 Page: 1 Date Filed: 05/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41267 FILED
Summary Calendar May 6, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER FLORES, also known as Gordo,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-36-26
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Flores appeals from the sentence imposed on remand in connection with
his conviction for conspiracy to distribute or possess with the intent to
distribute a controlled substance. On remand, the district court imposed a
sentence below the statutory minimum and within the guidelines range of 108
months of imprisonment. Flores argues that the district court committed
procedural error in determining the applicable guidelines range. Specifically,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-41267 Document: 00513495854 Page: 2 Date Filed: 05/06/2016
No. 15-41267
he contends that the district court clearly erred in finding that he was
responsible for cocaine. Flores asserts that he testified at the resentencing
hearing that he was not involved in cocaine and that his testimony was
sufficient for the court to determine that he should not be held responsible for
cocaine.
We review the district court’s determination of drug quantity for clear
error and will affirm the finding as long as it is “plausible in light of the record
as a whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)
(internal quotation marks and citations omitted). A district court may
determine drug amounts for sentencing purposes provided the finding is based
on reliable evidence, such as the presentence report. United States v. Alford,
142 F.3d 825, 832 (5th Cir. 1998). In arriving at a drug quantity, the court
may also rely upon information provided by codefendants and other witnesses,
including uncorroborated hearsay, provided the information bears the
minimum indicia of reliability. United States v. Gaytan, 74 F.3d 545, 558 (5th
Cir. 1996); United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992).
The district court relied on statements from cooperating codefendants
and the testimony of Special Agent Kory Casler in determining that Flores was
responsible for cocaine. Though Flores denied any involvement with cocaine,
the district court implicitly determined that the testimony of Special Agent
Casler and the statements from the cooperating codefendants were more
credible than Flores’s testimony. “Credibility determinations in sentencing
hearings are peculiarly within the province of the trier-of-fact.” United States
v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (internal quotation marks and
citation omitted). The district court did not err in including the 300 kilograms
of cocaine as relevant conduct for sentencing purposes. See Betancourt, 422
F.3d at 246.
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No. 15-41267
Flores also challenges the substantive reasonableness of his within-
guidelines sentence. Because Flores did not object in the district court to the
reasonableness of his sentence, this court’s review of the substantive
reasonableness of his sentence is for plain error. See United States v. Peltier,
505 F.3d 389, 391 (5th Cir. 2007). Flores’s argument challenging his sentence
as substantively unreasonable is conclusory, and he fails to rebut the
presumption of reasonableness that is accorded his within-guidelines sentence;
thus, he fails to establish that the court plainly erred. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
The judgment of the district court is AFFIRMED.
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