Case: 13-41029 Document: 00512800086 Page: 1 Date Filed: 10/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-41029 FILED
Summary Calendar October 10, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE GUADALUPE RANGEL-HERNANDEZ, also known as Monstro,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-874-2
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Jose Guadalupe Rangel-Hernandez pleaded guilty to conspiring to
possess, with intent to distribute, 1,000 kilograms or more of marijuana and
five kilograms or more of cocaine. The district court’s advisory Guidelines-
sentencing calculations included enhancements for Rangel’s role in the offense
and possession of firearms in connection with it. Regarding those two
enhancements, Rangel challenges his 292-month sentence.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-41029
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, 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).
For the two issues, however, Rangel only objected in district court to the role-
in-the-offense enhancement.
Assuming arguendo he preserved sufficiently in district court the specific
challenge raised here regarding the role enhancement, his claim nevertheless
fails. Application of the two-level enhancement was under Guideline § 3B1.1(c)
(“If the defendant was an organizer, leader, manager, or supervisor in any
criminal activity . . . increase by 2 levels”.). Rangel asserts the presentence
investigation report’s (PSR) statement of facts, upon which the court relied,
lacked sufficient indicia of reliability. The application at issue is reviewed for
clear error. E.g., United States v. Alaniz, 726 F.3d 586, 622 (5th Cir. 2013)
(citation omitted).
Rangel does not dispute that the PSR’s statement of facts, if credible,
supports application of the enhancement; rather, he maintains the fact-based
conclusions are unsupported by adequate evidence. Rangel, however, fails to
demonstrate the PSR’s statement of facts is “materially untrue, inaccurate or
unreliable”. United States v. Washington, 480 F.3d 309, 319 (5th Cir. 2007)
(citation and quotation marks omitted).
Rangel next contests the application of a two-level enhancement under
Guideline § 2D1.1(b)(1) for possession of firearms in connection with the
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No. 13-41029
offense. The firearms at issue were found with narcotics in a warehouse. As
noted, Rangel raises this issue for the first time on appeal; therefore, review is
only for plain error. E.g., United States v. Rodriguez, 15 F.3d 408, 414-15 (5th
Cir. 1994) (citation omitted). Under that standard, Rangel must show a
forfeited plain (clear or obvious) error that affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the
discretion to correct the error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. Id.
Rangel claims the district court should not have enhanced his sentence
for possessing firearms without finding either: he personally possessed them,
or; a particular co-conspirator knowingly possessed them. Rangel bases this
claim on issues of fact that could have been resolved in the district court on
proper objection; thus, he cannot show plain error. United States v. Rodriguez,
602 F.3d 346, 361 (2010) (citation omitted).
AFFIRMED.
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