Case: 09-40891 Document: 00511287537 Page: 1 Date Filed: 11/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2010
No. 09-40891
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CARLOS BORJAS,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-112-1
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Carlos Borjas was convicted following a bench trial of: possession with
intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C); receiving and possessing firearms with obliterated serial numbers
and not registered in the National Firearms Registration and Transfer Record,
in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; unlawfully transferring
registered weapons with obliterated serial numbers and unregistered weapons,
in violation of 26 U.S.C. §§ 5841, 5861(e), and 5871; unlawfully transferring
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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registered weapons to another person, in violation of 26 U.S.C. §§ 5841, 5861(e),
and 5871; possession and transfer of machine guns with obliterated serial
numbers, in violation of 18 U.S.C. §§ 922(o) and 924 (a)(2); and possession and
transfer of machine guns, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2).
Borjas was found not guilty of carrying and using a firearm in relation to a drug-
trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(B)(i) and (c)(1)(B)(ii). He
was sentenced to 121 months on the drug count and to concurrent sentences of
120 months on each of the firearm counts.
Borjas appeals the firearms sentences, contending: the district court
abused its discretion at the sentencing hearing by admitting the transcript of an
audio recording of one of the firearms transactions between Borjas and a
confidential informant, which was used to enhance Borjas’ sentence; and his
sentence is both procedurally and substantively unreasonable.
In claiming the district court abused its discretion by admitting the
transcript, Borjas asserts: the recording was unreliable, and the Government
did not comply with Federal Rule of Evidence 901(b)(1)(5)’s requirement that it
show the proper predicate for its admission. The Rules of Evidence, however, do
not apply at sentencing proceedings. See F ED. R. E VID. 1101(d)(3); United States
v. Young, 981 F.2d 180, 187-88 (5th Cir. 1992). A district court at sentencing
“may consider relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy”. U.S.S.G. § 6A1.3(a); e.g.,
United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004). In other words,
“due process merely requires that information relied on in determining an
appropriate sentence have ‘some minimal indicium of reliability’ and ‘bear some
rational relationship to the decision to impose a particular sentence’”. Young,
981 F.2d at 187 (quoting United States v. Galvan, 949 F.2d 777, 784 (5th Cir.
1991)).
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Borjas fails to demonstrate the information was “materially untrue”. See
Ramirez, 367 F.3d at 277. Special Agent Casey testified at sentencing: he tested
the electronic recording device to ensure it worked properly; he was physically
present during the surveillance; he could see both Borjas and the confidential
informant during their conversation; and he had previously worked with the
confidential informant and was familiar with his voice. That certain portions of
the conversation might not have been recorded, as Borjas contends, does not
amount to showing what was recorded—that Borjas understood the altered
firearms would travel to Mexico—was unreliable.
Further, Borjas fails to show his within-Guidelines sentence was either
procedurally or substantively unreasonable. Pursuant to Gall v. United States,
we engage in a bifurcated review, considering both the procedural propriety and
substantive reasonableness of the sentence imposed by the district court. 552
U.S. 38, 48-51 (2007); see also United States v. Delgado-Martinez, 564 F.3d 750,
752-53 (5th Cir. 2009).
Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the advisory Guideline-sentencing
range for use in deciding on the sentence to impose. Gall, 552 U.S. at 49-51. In
that respect, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir.
2005).
Borjas contends his sentence is procedurally unreasonable because the
district court misapplied the Guidelines by: (1) enhancing his offense level
under Guideline § 2K2.1(b)(1)(B), based on the number of firearms involved in
the collective offenses; and (2) enhancing his offense level under Guideline
§ 2K2.1(b)(6), based on Borjas’ “knowledge, intent, or reason to believe [any of
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the firearms] would be used or possessed in connection with another felony
offense”, i.e., cross the border into Mexico. A sentence is procedurally sound if
the district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the
Guidelines range.
Gall, 552 U.S. at 51.
The four-level enhancement imposed pursuant to § 2K2.1(b)(1)(B) for
Borjas’ offenses involving between eight and 24 firearms was proper. Borjas
concedes there were three separate transactions involving six firearms, as is
listed in the indictment. The presentence investigation report (PSR) established
Borjas attempted to sell a seventh weapon to the confidential informant, but it
was rejected due to poor quality. The PSR also established Borjas sold an eighth
weapon, an Uzi machine gun, to a co-defendant. Further, the district court
found Borjas delivered two additional firearms to his co-defendants that were
not already accounted for.
Additionally, the four-level enhancement imposed pursuant to
§ 2K2.1(b)(6), based on Borjas’ “knowledge, intent, or reason to believe” any of
the firearms he sold the confidential informant would be “used or possessed in
connection with another felony offense”, was procedurally proper. The transcript
for the conversation between Borjas and the confidential informant on 29 March
2007 revealed Borjas understood the weapons were being transported into
Mexico when he sold them to the informant. The district court found: Borjas
had “reason to believe” the firearms he sold the informant were being
transported into Mexico after purchase; and transporting these types of
automatic weapons into Mexico was illegal.
The district court imposed other enhancements, but Borjas fails to present
any contentions relative to them. Therefore, any challenges to those
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enhancements are abandoned. E.g., United States v. Torres-Aguilar, 352 F.3d
934, 936 n.2 (5th Cir. 2003).
Borjas contends his sentence is substantively unreasonable because he had
no criminal history points, and because he “led a decent and proper life” prior to
his arrest. Borjas did not object to the substantive reasonableness of his
sentence in district court; therefore, it is reviewed only for plain error. Puckett
v. United States, 129 S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). Even under the normal standard of review, his
contention fails.
Borjas was sentenced to the lowest end of the advisory-Guideline range on
the firearm counts. A presumption of reasonableness applies to Borjas’ within-
Guidelines sentence. See Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). The sentencing
judge noted he considered all the factors under § 3553(a) and concluded a
sentence within the Guidelines satisfied them. Borjas has failed to rebut the
presumption of reasonableness because the sentencing judge “is in a superior
position to find facts and judge their import under § 3553(a)”. Gall, 552 U.S. at
51.
AFFIRMED.
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