United States v. Alejandro De Los Santos

Case: 11-50139 Document: 00511977396 Page: 1 Date Filed: 09/06/2012

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

FILED
September 6, 2012
No. 11-50139
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALEJANDRO DE LOS SANTOS,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:08-CR-467-1

Before JONES, Chief Judge, and SOUTHWICK and HAYNES, Circuit Judges.
PER CURIAM:*
Alejandro De Los Santos appeals his conviction, 109-month sentence
within the Guidelines, and $10,000 fine, imposed after a jury found him guilty
of conspiracy to possess marijuana with intent to distribute and possession of
marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 846. He raises four issues on appeal. As there is no reversible
error, we affirm.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50139

De Los Santos argues that his conviction must be vacated because it was
obtained in violation of his right to be free from double jeopardy. He contends
that in his first trial, the jury was not “hopelessly deadlocked,” notwithstanding
trial counsel’s sworn contrary testimony (bolstered by the recollections of the
prosecutor and trial judge). He cannot dispute, moreover, that the motion, once
granted, waives a double jeopardy claim. United States v. Scott, 437 U.S. 82, 93,
98 S. Ct. 2187 (1978) (internal citation omitted). We find neither factual nor
legal error in the district court’s rejection of Appellant’s double jeopardy
argument. To the extent Appellant now argues on direct appeal that the first
trial counsel was ineffective on this basis, he did not raise the claim in the
district court and we will not review it. See United States v. Gulley, 526 F.3d
809, 821 (5th Cir. 2008).
De Los Santos also argues that his conviction must be reversed under the
Court Reporter’s Act because the portion of his first trial dealing with mistrial
was not fully transcribed. His claim is unavailing because the purported missing
record is not substantial or significant, given his trial counsel’s later sworn
testimony. See e.g., United States v. Selva, 559 F.2d 1303, 1304-06 & n.5 (5th
Cir. 1977); United States v. Gregory, 472 F.2d 484, 486 (5th Cir. 1973).
De Los Santos appeals his sentence, arguing that the district court erred
when it calculated the amount of marijuana attributable to him and when it
refused his request for a sentence below the guidelines range of imprisonment.
Pursuant to Gall v. United States, 552 U.S. 38, 48-51 (2007), this court, under
bifurcated review, determines whether the sentence imposed is procedurally
sound and, if it is, whether the sentence imposed is substantively reasonable.
The district court did not clearly err when it determined the drug quantity
for sentencing purposes insofar as the record supports the court’s finding that
De Los Santos confessed to transporting marijuana on two occasions prior to the
instant offense. See United States v. Cantu-Ramirez, 669 F.3d 619, 629 (5th

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No. 11-50139

Cir.), cert. denied, ___ S. Ct. ___, 2012 WL 1715991 (2012); United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
De Los Santos’s further contention that, because the district court failed
to address his specific arguments for a sentence below the Guidelines, the
sentence was substantively unreasonable, also fails. The district court
adequately explained its reasons for its sentence. See Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005). De Los Santos has failed to rebut the presumption of reasonableness
accorded sentences imposed within the Guidelines range of imprisonment. See
United States v. Camero-Renobato, 670 F.3d 633, 636 (5th Cir. 2012). Nor can
De Los Santos show that the district court abused its discretion in imposing a
$10,000 fine. See United States v. Matovsky, 935 F.2d 719, 723 (5th Cir. 1991);
U.S.S.G. § 5E1.
AFFIRMED.

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