United States v. Austreberta Macedo-Flores , 599 F. App'x 215 ( 2015 )


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  •      Case: 14-10467      Document: 00513001041         Page: 1    Date Filed: 04/10/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-10467
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    April 10, 2015
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff-Appellee
    v.
    AUSTREBERTA MACEDO-FLORES,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Northern District of Texas
    USDC No. 3:13-CR-281-4
    Before KING, JOLLY, and HAYNES, Circuit Judges.
    PER CURIAM: *
    Austreberta Macedo-Flores (Macedo) appeals following her jury
    convictions for one count of conspiracy to possess with intent to distribute a
    controlled substance and two counts of possession with intent to distribute a
    controlled substance. Macedo argues that the district court erred by denying
    her motion for a new trial, that the district court erred by not granting a
    minimal role adjustment, and that her sentence is substantively unreasonable.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10467
    At trial, an FBI linguist testified that she listened to recorded
    conversations made while Macedo was incarcerated, between Macedo and
    family members. The recorded conversations were not played for the jury or
    introduced into evidence. Macedo contends that the recorded conversations
    were not properly authenticated and that they were not produced to the
    defense prior to trial, which violated the rules of discovery; she raised these
    arguments for the first time in her motion for a new trial.
    Because Macedo first raised the authentication and discovery violation
    arguments in her motion for a new trial, plain error review applies. United
    States v. Garcia, 
    567 F.3d 721
    , 726 n.2 (5th Cir. 2009). Macedo thus must show
    a clear or obvious forfeited error affecting her substantial rights. Puckett v.
    United States, 
    556 U.S. 129
    , 135 (2009). If she makes this showing, we have
    the discretion to correct the error but only if it seriously affects the fairness,
    integrity, or public reputation of judicial proceedings. 
    Id.
    Authentication is a condition precedent to the admission of evidence and
    is satisfied when a party presents “evidence sufficient to support a finding that
    the item is what the proponent claims it is.” FED. R. EVID. 901(a). Here, it is
    undisputed that the recorded conversations were not admitted into evidence at
    trial.    Because Macedo offers no authority that the recordings required
    authentication, she cannot establish plain error. See United States v. Evans,
    
    587 F.3d 667
    , 671 (5th Cir. 2009); Puckett, 
    556 U.S. at 135
    ; FED. R. EVID. 901.
    Next, Macedo argues that the Government violated the rules of discovery
    by not providing copies of the recorded conversations prior to trial. We will not
    order a new trial based on alleged discovery violations unless the defendant
    shows that a denial of access to evidence was prejudicial to her substantial
    rights. United States v. Dukes, 
    139 F.3d 469
    , 476 (5th Cir. 1998). This requires
    a showing of “a reasonable probability that, had the evidence been disclosed to
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    No. 14-10467
    the defense, the result of the proceeding would have been different.” United
    States v. Webster, 
    162 F.3d 308
    , 336 (5th Cir. 1998) (internal quotation marks
    and citation omitted). Such a probability is shown “where the nondisclosure
    could reasonably be taken to put the whole case in such a different light as to
    undermine confidence in the jury verdict.” Webster, 162 F.3d at 336.
    The trial evidence shows that on April 24, 2013, Macedo sold
    methamphetamine to an undercover officer in a shed behind her home and that
    at least twice, she accepted the delivery of methamphetamine for sale. Based
    on the foregoing, any nondisclosure of the recorded conversations could not
    reasonably be shown to undermine confidence in the jury’s verdict on Macedo’s
    convictions for one count of conspiracy to possess with intent to distribute a
    controlled substance and two counts of possession with intent to distribute a
    controlled substance. See id.; 
    21 U.S.C. §§ 841
    , 846.
    Macedo next argues that the district court clearly erred in denying a
    four-level reduction for her minimal role in the offense, She asserts that her
    son directed her to deliver the package to the undercover agent; she was
    unaware that it contained drugs; she was linked to only one sale; and she was
    not recorded on any wiretaps. Under U.S.S.G § 3B1.2, a district court may
    decrease a defendant’s offense level by four levels if the defendant was a
    minimal participant in the criminal activity. Whether the defendant is a
    minimal participant is a factual determination that is reviewed for clear error.
    United States v. Villanueva, 
    408 F.3d 193
    , 203 & n.9 (5th Cir. 2005).
    The record reflects that Macedo participated in numerous sales of
    methamphetamine, she accepted at least four to five deliveries of
    methamphetamine, and a shed behind her home was used to conduct the drug
    conspiracy. Thus, the district court’s finding that she was not a minimal
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    participant is plausible in light of the record as a whole. See Villanueva, 
    408 F.3d at 203
    .
    Finally, Macedo argues that her sentence is substantively unreasonable
    given her lack of any prior criminal history and her minor role in the offense.
    Because she did not object to the reasonableness of her sentence, our review is
    for plain error. See United States v. Peltier, 
    505 F.3d 389
    , 391-92 (5th Cir.
    2007). When the district court imposes a sentence within a properly calculated
    guidelines range, the sentence is entitled to a presumption of reasonableness
    that may be rebutted only if the defendant establishes that “the sentence does
    not account for a factor that should receive significant weight, it gives
    significant weight to an irrelevant or improper factor, or it represents a clear
    error of judgment in balancing sentencing factors.” United States v. Cooks, 
    589 F.3d 173
    , 186 (5th Cir. 2009). We have also indicated that a below-guidelines
    sentence appealed by the defendant is afforded a rebuttable presumption of
    reasonableness. See United States v. Murray, 
    648 F.3d 251
    , 258 (5th Cir.
    2011).
    The district court considered Macedo’s arguments in mitigation, the
    materials submitted to the court, the 
    18 U.S.C. § 3553
    (a) factors, and the
    guidelines range. The court determined that a 144-month below-guidelines
    sentence was appropriate based on Macedo’s age, poverty level, relationship
    with her son, and future deportation status. Macedo’s argument that the
    district court should have sentenced her even lower below the guidelines range
    merely reflects her disagreement with the propriety of her sentence.         See
    United States v. Ruiz, 
    621 F.3d 390
    , 398 (5th Cir. 2010). She has not shown
    sufficient reason for this court to disturb the presumption of reasonableness
    applicable to her sentence. Cooks, 
    589 F.3d at 186
    ; Murray, 
    648 F.3d at 258
    .
    Accordingly, the judgment of the district court is AFFIRMED.
    4