United States v. Cardenas

Case: 20-10708     Document: 00515899051         Page: 1     Date Filed: 06/14/2021




              United States Court of Appeals
                   for the Fifth Circuit                        United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                   June 14, 2021
                                  No. 20-10708                    Lyle W. Cayce
                                Summary Calendar                       Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Ricky Cardenas,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:19-CR-368-1


   Before Wiener, Southwick, and Duncan, Circuit Judges.
   Per Curiam:*
          Ricky Cardenas pleaded guilty to possession with intent to distribute
   methamphetamine.        The presentence report (PSR) held Cardenas
   responsible for 1,167 kilograms of converted drug weight. Cardenas objected
   to this amount because some of the methamphetamine was for his personal


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10708        Document: 00515899051          Page: 2   Date Filed: 06/14/2021




                                      No. 20-10708


   use. The district court overruled Cardenas’s objection to the drug quantity
   calculation, rejected his request for a downward variance, and sentenced him
   to 165 months in prison.
             Cardenas argues that the district court erred in calculating the drug
   quantity attributable to him. He does not challenge the factual finding that
   he possessed 1,167 kilograms of converted drug weight but argues that there
   was not sufficient evidence to show that he intended to distribute more than
   1,000 kilograms of converted drug weight. We review the district court’s
   factual finding on drug quantity for clear error. United States v. Betancourt,
   422 F.3d 240, 246 (5th Cir. 2005).
             Contrary to Cardenas’s argument, 1,167 kilograms of combined drug
   weight, supported by the facts in the PSR, shows that he possessed the
   methamphetamine with the intent to distribute it. See United States v. Rains,
   615 F.3d 589, 594 (5th Cir. 2010); United States v. Trujillo, 502 F.3d 353, 357
   (5th Cir. 2007). Cardenas does not present any evidence of his actual drug
   use but simply speculates as to the amount of daily drug usage. This is not
   sufficient to show that the PSR’s information is “materially untrue,
   inaccurate, or unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th
   Cir. 2012) (internal quotation marks and citation omitted). Considering the
   record as a whole, the district court’s factual finding that Cardenas possessed
   with the intent to distribute between 1,000 and 3,000 kilograms of converted
   drug weight is plausible and not clearly erroneous. See Betancourt, 422 F.3d
   at 246.
             Cardenas requested credit for time served in federal custody prior to
   his sentencing. The district court stated that it thought that the credit for
   time served would be granted and granted Cardenas’s request to include the
   matter in the judgment, which the district court did. There is nothing in the
   record to suggest that the district court would have lowered Cardenas’s




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Case: 20-10708      Document: 00515899051          Page: 3    Date Filed: 06/14/2021




                                    No. 20-10708


   sentence had it known that the recommendation for credit for time served
   was not mandatory. In United States v. Taylor, 973 F.3d 414, 418 (5th Cir.
   2020), we noted that district courts are not permitted to compute sentence
   credit, that a request for such credit was inviting error, and that any such
   error would be reversed only if it resulted in manifest injustice. In this case,
   there is no uncertainty in the district court’s intent, and Cardenas has failed
   to demonstrate entitlement to a limited remand under Taylor.
          AFFIRMED.




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