Case: 17-10673 Document: 00514467535 Page: 1 Date Filed: 05/10/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10673
Fifth Circuit
FILED
Summary Calendar May 10, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
CHRISTIAN GERARDO SANCHEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-81-4
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Christian Gerardo Sanchez challenges the sentence imposed following
his guilty-plea conviction for conspiracy to possess, with intent to distribute, a
controlled substance, in violation of 21 U.S.C. §§ 846, 841 (a)(1) & (b)(1)(B). He
claims the district court committed clear error by finding, under Sentencing
Guideline § 2D1.1(b)(12), that he maintained a premises for the purpose of
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-10673
manufacturing or distributing a controlled substance, resulting in a two-level
enhancement to his base offense level.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). 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).
The district court’s application of Guideline § 2D1.1(b)(12) is a factual
finding which, as provided above, is reviewed only for clear error. E.g., United
States v. Guzman-Reyes, 853 F.3d 260, 263 (5th Cir. 2017). As long as a factual
finding is plausible in the light of the record as a whole, it is not clearly
erroneous and should be upheld. E.g., United States v. Alaniz, 726 F.3d 586,
618 (5th Cir. 2013).
In the presentence investigation report (PSR), the probation officer
recommended the § 2D1.1(b)(12) adjustment based on information that
Sanchez and codefendant Jimenez resided at a stash house, which they used
to store and distribute methamphetamine on behalf of codefendant Barajas,
who paid for the house. The PSR noted that information was derived, in part,
from material compiled and prepared by Drug Enforcement Administration
(DEA) agents and task-force officers, as well as from Jimenez’ post-arrest
statements. Sanchez presented testimony at sentencing from his stepfather to
rebut the PSR’s finding Sanchez resided at the stash house. In response, the
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No. 17-10673
Government presented testimony from a DEA task-force member who clarified
that Jimenez stated he and Sanchez were the caretakers of the stash house.
Sanchez contends, for the first time on appeal, that the court should not
have relied on the task-force member’s testimony because Sanchez was not
provided with sufficient notice. This issue was not sufficiently briefed. In any
event, because Sanchez did not raise this issue in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, he must show a forfeited plain error (clear or
obvious error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct such reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
Sanchez fails to show the requisite clear or obvious error because the
testimony was merely a clarification of a statement discussed in the PSR.
Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Angeles-
Mendoza, 407 F.3d 742, 749 n.12 (5th Cir. 2005). Especially in the light of that
testimony, the district court’s factual finding that Sanchez exhibited sufficient
control over the stash house was plausible. Guzman-Reyes, 853 F.3d at 263;
U.S.S.G. § 2D1.1, cmt. 17. (As a result, the other issue raised for the first time
on appeal and also not adequately briefed—that the court erroneously relied
only on the reasons provided in the Government’s pre-sentencing response to
Sanchez’ objection to the PSR’s Guideline § 2D1.1(b)12) recommendation—also
fails.)
AFFIRMED.
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