Case: 09-10131 Document: 00511186907 Page: 1 Date Filed: 07/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 27, 2010
No. 09-10131
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HECTOR GUILLERMO BALLEZA, also known as Pancho, also known as Yiyo
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:
Hector Guillermo Balleza (Balleza) appeals the sentence imposed following
his guilty plea conviction for conspiracy to possess with intent to distribute and
to distribute five kilograms or more of cocaine and conspiracy to commit money
laundering.1 Balleza argues that the district court clearly erred by denying him
1
We take this opportunity to clarify this court’s jurisprudence on whether
an overt act in furtherance of the conspiracy is an element of the offense of
conspiracy to launder money in violation of 18 U.S.C. § 1956(h). It is not.
Overruling United States v. Wilson, 249 F.3d 366, 379 (5th Cir. 2001), the
Supreme Court held that an overt act is not an element of conspiracy to launder
money. Whitfield v. United States, 543 U.S. 209, 214 (2005). After Whitfield,
this court mistakenly recited in dicta that an overt act is an element of the
offense. United States v. Bueno, 585 F.3d 847, 850 (5th Cir. 2009); United States
v. Armstrong, 550 F.3d 382, 403 (5th Cir. 2008).
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No. 09-10131
a reduction for his having a minor role in the offense and that the district court
erred by not finding that he had a criminal history category of I. Balleza also
contends that his 240-month sentence was substantively unreasonable.
Balleza argues that the district court clearly erred by refusing to apply a
two-level reduction for his being a minor participant in the offense because he
did not lead, recruit, or direct any individual in the criminal offense and because
he merely worked under the direction of others. He maintains that the reduction
was appropriate because he did not participate in all of the activity alleged in the
presentence report (PSR).
The information in the PSR showed that Balleza transported loads of
narcotics, counted drug proceeds, conducted counter surveillance during the
unloading of large shipments of cocaine, turned over drug proceeds to a courier,
personally distributed five kilograms of cocaine, and helped direct the activities
of one other person during the conspiracy. While Balleza stated in an affidavit
that he did not conduct counter surveillance during the unloading of the large
shipments of cocaine, the district court rejected Balleza’s self-serving affidavit
by rejecting his related objection to the PSR, and the district court was entitled
to reject Balleza’s self-serving denials based upon the information contained in
the PSR. See United States v. Bates, No. 95-50111, 1995 WL 581888 at *8 (5th
Cir. Sept. 21, 1995) (unpublished); see also 5 TH C IR . R. 47.5.3 (unpublished
opinions issued prior to January 1, 1996, are precedential). Given Balleza’s
extensive involvement in the drug conspiracy, the district court’s determination
that Balleza was not a minor participant in the offense was not implausible in
light of the record as a whole, and, therefore, was not clearly erroneous. See
United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005).
In conformity with Whitfield, we recognize that an overt act is not an
element of the offense of conspiracy to launder money.
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No. 09-10131
The district court partially granted Balleza’s objection to his criminal
history category, ruling that Balleza should be considered to have a criminal
history category of one and a half and sentencing Balleza to a sentence within
the guidelines sentence range applicable if Balleza’s criminal history category
were I. Nevertheless, Balleza argues that the district court erred because it did
not fully grant his objection to his criminal history category. He maintains that
both of his prior convictions were relevant conduct to the present offense and
should not have resulted in any criminal history points, placing him in criminal
history category I. He maintains that the district court’s refusal to fully grant
his objection harmed him because, even though the district court sentenced him
within the guidelines range for a defendant with his offense level and a criminal
history category of I, he was not considered eligible for a safety valve reduction.
Balleza’s prior conviction for possession of cocaine was for conduct
committed prior to the beginning of the present drug conspiracy. Balleza
presented no evidence that the cocaine involved in the prior conviction was
derived from the present drug conspiracy. Balleza’s other prior conviction was
for possession of Alprazolam and for failure to identify himself as a fugitive from
justice, and there is no indication that the present drug conspiracy included any
drug other than cocaine. Accordingly, the probation officer correctly determined
that Balleza’s prior convictions each counted for one criminal history point,
giving Balleza a criminal history category of II. See United States v. Garza, No.
94-41339, 1995 WL 534842 at *5 (5th Cir. Aug. 14, 1995) (unpublished); see also
5 TH C IR. R. 47.5.3. As the district court ruled that Balleza’s criminal history
category was the non-existent one and a half, any error committed by the district
court in calculating Balleza’s criminal history category was in Balleza’s favor
and was, therefore, harmless to Balleza. See United States v. Morales-Sosa, 191
F.3d 586, 587-88 (5th Cir. 1999) (holding that error that does not affect the
defendant’s substantial rights is harmless).
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Balleza asserts that his sentence was substantively unreasonable because
it was substantially greater than the sentences of co-defendants who were more
culpable than he was. Balleza argues that his sentence was unreasonably high
because his criminal history category was incorrectly determined to be II and
because he received a two-level enhancement for being convicted of money
laundering. He maintains that the long sentence he received was unwarranted
because he exercised no discretion in his activities and merely followed orders
given by co-defendants via telephone. He asserts that he was only 18 years old
at the time of the offense and that nothing in his background or role in the
offense suggests that he deserved the sentence he received.
One of the § 3553(a) factors requires the district court to consider “the
need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” § 3553(a)(6). However,
this disparity factor requires the district court to avoid only unwarranted
disparities between similarly situated defendants nationwide, and it does not
require the district court to avoid sentencing disparities between co-defendants
who might not be similarly situated. United States v. Candia, 454 F.3d 468, 476
(5th Cir. 2006).
While Balleza argues that two co-defendants, Jose Silva and Patrick
Hooper, were similarly situated or more culpable co-defendants who received far
lesser sentences, Silva was convicted of the money laundering conspiracy charge
only and Hooper was convicted of the drug conspiracy charge only, unlike
Balleza who pleaded guilty to both charges. While Balleza asserts that the two-
level enhancement for his being convicted of the money laundering conspiracy
created an unwarranted sentence disparity, this is incorrect as the sentence
disparity factor requires only that unwarranted sentence disparities not be
created between defendants “who have been found guilty of similar conduct.” 18
U.S.C. § 3553(a)(6). At sentencing, Balleza’s counsel acknowledged that Silva
or Hooper likely received a downward departure based on a government motion,
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presumably referring to a departure for substantial assistance. Balleza has not
shown that he was similarly situated to Silva or Hooper, and sentence
disparities between co-defendants who were convicted of different charges or
who received departures for substantial assistance are not unwarranted
disparities under § 3553(a)(6). See Candia, 454 F.3d at 476.
Information presented at sentencing showed that a third co-defendant,
Aldo Saenz, like Balleza, pleaded guilty to both the drug conspiracy charge and
the money laundering conspiracy charge without a plea agreement. The district
court sentenced Balleza to 240 months of imprisonment, 22 months less than
Saenz’s sentence of 262 months of imprisonment, and, in passing sentence, it
stated that Balleza’s sentence was “in keeping with the horizontal equity among
the various defendants.” Thus, the record shows that the district court sought
to avoid an unwarranted sentence disparity between Balleza and Saenz, and it
imposed a sentence that it believed was appropriate based upon Saenz’s sentence
and the other § 3553(a) factors. Balleza has not shown that the district court
abused its discretion by creating an unwarranted disparity between his sentence
and the sentences of his co-defendants. See Candia, 454 F.3d at 476-77.
Balleza’s assertions that his sentence was unreasonable because his
criminal history category was incorrectly calculated, because of his youth, and
because nothing in his background or role in the offense justified a 240-month
sentence are also without merit. As shown above, any error in the calculation
of Balleza’s criminal history category was in Balleza’s favor. While Balleza was
relatively young at the time he began the present offenses, age is generally not
a relevant factor in sentencing, and Balleza has not shown why his sentence was
unreasonable simply because of his relative youth. See United States v.
Simmons, 470 F.3d 1115, 1130-31 (5th Cir. 2006). Finally, while Balleza
maintains that his background and role in the offense did not justify the
sentence he received, the facts set forth in the PSR that were adopted by the
district court showed that Balleza significantly participated in a major drug
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conspiracy for a substantial amount of time. Given the facts of the case and the
deference given to district court sentencing decisions, Balleza has not shown that
the district court abused its discretion or that the sentence was unreasonable.
See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 384-87 (5th Cir. 2008).
AFFIRMED.
6