United States v. Juan Borrego

Case: 11-50040 Document: 00511746832 Page: 1 Date Filed: 02/03/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 3, 2012
No. 11-50040
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JUAN ANTONIO BORREGO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-871-3

Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Juan Antonio Borrego appeals the 121-month concurrent sentences
imposed following his jury trial convictions for conspiracy to possess with intent
to distribute marijuana and possession with intent to distribute marijuana in
violation of 21 U.S.C. §§ 841 and 846. Borrego argues that the district court
erred in determining the amount of drugs attributable to him as relevant
conduct for purposes of sentencing and that his within-guideline sentences are
therefore unreasonable. He contends that the evidence used to calculate his

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 Case: 11-50040 Document: 00511746832 Page: 2 Date Filed: 02/03/2012

No. 11-50040

base offense level under the Guidelines was unreliable because it consisted solely
of uncorroborated statements by two cooperating witnesses who were also
coconspirators. He states that one of the coconspirators is a cocaine addict, a
career drug transporter, and a convicted felon and that both coconspirators had
an incentive to lie about Borrego’s involvement in the conspiracy because they
entered into plea agreements with the Government and wanted to shift criminal
liability from themselves to Borrego.
As the district court had the opportunity to observe the coconspirators
while they testified during Borrego’s trial, it had the opportunity to evaluate
their credibility. See Burton v. United States, 237 F.3d 490, 500 (5th Cir. 2000).
Moreover, Borrego offered nothing at sentencing to rebut the statements made
by his conconspirators that were contained in the presentence report.
See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). Accordingly, the
district court did not clearly err in relying on the unrebutted testimony and
statements of Borrego’s coconspirators to determine the amount of drugs
attributable to Borrego. Id.; Burton, 237 F.3d at 500. Because Borrego was
sentenced within the recommended guidelines range, his within-guidelines
sentences are presumptively reasonable. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). The sentences imposed by the district court are
AFFIRMED.

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