USA v. Roberto Cardona, No. 12-50166 (5th Cir. 2013)
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Case: 12-50166 Document: 00512376686 Page: 1 Date Filed: 09/17/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50166 Summary Calendar September 17, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ROBERTO ANGEL CARDONA, also known as Little Angelito, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-2213-15 Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM:* Roberto Angel Cardona appeals the life sentence imposed following his guilty plea conviction for conspiracy to conduct the affairs of an enterprise, namely, the Barrio Azteca organization, through a pattern of racketeering activity. Cardona seeks resentencing based on three alleged procedural errors. After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed for procedural error and substantive reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 50-51 (2007). The district court s * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50166 Document: 00512376686 Page: 2 Date Filed: 09/17/2013 No. 12-50166 interpretation or application of the Guidelines is reviewed de novo, and its factual findings are reviewed for clear error. Id. at 472. There is no clear error if the district court s finding is plausible in light of the record as a whole. United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010) (quotation marks and citation omitted). For the first time on appeal, Cardona contends that the district court either mistakenly believed that the offense of conviction carried a mandatory minimum sentence or treated the United States Sentencing Guidelines as mandatory. We review this claim for plain error only. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). The record, when viewed in its entirety, does not support Cardona s allegation that the district court believed the offense carried a mandatory minimum sentence or that the court was unaware of the various sentencing alternatives under the advisory Guidelines. At rearraignment, the district court stated only the maximum term of imprisonment (life); the district court did not admonish Cardona regarding any minimum term. The district court also confirmed that Cardona understood the advisory nature of the Guidelines and how they would be applied in his case. At sentencing, which proceeded for over three hours, defense counsel clarified that a life sentence was the statutory maximum term. Additionally, the district court heard testimony from three witnesses, as well as argument and objections from the defense, regarding the Guidelines calculations and Cardona s request for a sentence below the recommended term of life imprisonment. Finally, the district court s sentencing colloquy demonstrates the court was aware of its discretion. Because the factual allegations underlying the instant challenge are not supported by the record, Cardona has not shown error, plain or otherwise. Next, Cardona claims that the district court erroneously applied the sentencing enhancements based on testimony that was not credible and that was internally inconsistent. In support, he generally attacks the testimony of the 2 Case: 12-50166 Document: 00512376686 Page: 3 Date Filed: 09/17/2013 No. 12-50166 three Government witnesses on the issues of leadership within the Barrio Azteca organization, acts of violence, and a kidnaping of an unknown man in 2007. These attacks apparently call into question the district court s application of the four-level enhancements pursuant to U.S.S.G. § 3B1.1(a) based on Cardona s aggravating role in the offense, the two-level use-of-violence enhancement pursuant to § 2D1.1(b)(2), and the two-level enhancement pursuant to § 2B3.2(b)(3)(B) based on Cardona s participation in the kidnaping. Any claims of error regarding the other enhancements applied by the district court are waived by virtue of inadequate briefing. See United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010). Cardona s challenge to the application of the above-mentioned enhancements finds no convincing support in the record. In support of the aggravating role enhancements, the Government elicited testimony that, by 2007 or 2008, Cardona had attained rank within the Barrio Azteca organization and thus was considered to be a major player. With respect to the use-ofviolence enhancement, one of the Government s witnesses testified that (1) Cardona had him beaten up, or violated, for not standing up to another Barrio Azteca member; (2) he saw Cardona punch another man for giving Cardona the runaround to pay quota; and (3) while they were incarcerated together in 2009, Cardona told him that he was going to have another man assaulted because of a money debt. Additionally, with respect to the kidnaping enhancement, the Government elicited testimony from one witness directly implicating Cardona in the planning of the kidnaping, in the summer of 2007, of a man who had been accused of sexually assaulting the daughter of a Barrio Azteca member. Because the evidence relied on by the district court had a sufficient indicia of reliability, and because the district court s factual findings regarding Cardona s role, his use of violence, and the kidnaping are plausible in light of the record as a whole, Cardona has not shown that the district court erred in 3 Case: 12-50166 Document: 00512376686 Page: 4 Date Filed: 09/17/2013 No. 12-50166 overruling his objection to the sentencing enhancements. See United States v. Cantu-Ramirez, 669 F.3d 619, 629 (5th Cir.), cert. denied, 133 S. Ct. 247 (2012); Harris, 597 F.3d at 250. Further, it was within the province of the district court to determine the credibility of the witness s testimony. See United States v. Ocana, 204 F.3d 585, 593 (5th Cir. 2000). Such determinations in sentencing hearings are peculiarly within the province of the trier-of-fact. United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (citation omitted). Cardona s third assignment of error is that, in applying the sentencing enhancements, the district court violated his Sixth Amendment and due process rights and the precedents of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Booker, 543 U.S. 220, by considering conduct neither found by a jury nor admitted by Cardona. The authority Cardona cites is inapposite. Post-Booker, [t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence. United States v. Whitfield, 590 F.3d 325, 367 (5th Cir. 2009) (internal quotations and citation omitted). Thus, the district court did not violate Cardona s Sixth Amendment or due process rights in finding and considering all facts relevant to the sentencing. Accordingly, we affirm the judgment of the district court below, but we also remand to the district court for the limited purpose of correcting the statement of reasons accompanying the judgment of conviction to remove the inadvertent check mark indicating that a mandatory minimum sentence was imposed in this case. See FED. R. CRIM. P. 36; United States v. Powell, 354 F.3d 362, 371-72 (5th Cir. 2003). AFFIRMED and REMANDED with instruction. 4
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