United States v. Adrian Pineda-Orozco ( 2018 )

Case: 17-50867 Document: 00514677681 Page: 1 Date Filed: 10/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-50867 FILED
Summary Calendar October 11, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ADRIAN PINEDA-OROZCO,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:16-CR-47-3
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Adrian Pineda-Orozco was convicted by a jury of both conspiracy to
possess, with intent to distribute, and conspiracy to import, 50 grams or more
of methamphetamine, in violation of 21 U.S.C. §§ 846, 963, and was sentenced
below the Sentencing Guidelines advisory range to concurrent 600-month
terms of imprisonment. He contests his convictions and sentence, claiming
error for the jury instruction on the affirmative defense of duress for the former
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-50867
and for rulings on three offense-level adjustments for the latter. (Pineda also
asserts “[t]he evidence was insufficient to sustain his conviction” in the
summary-of-the-argument section of his brief. This claim was not briefed
beyond this single mention; therefore, it is waived. E.g., United States v.
Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).)
Regarding the challenge on appeal to his convictions, Pineda testified at
trial. He contends the related jury instruction on the affirmative defense of
duress was erroneous because it did not expressly encompass purported
threats to his family members. See United States v. Willis, 38 F.3d 170, 179
(5th Cir. 1994). Because Pineda did not raise this issue in district court, review
is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Pineda must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.Without deciding whether the phrasing of the instruction was clear or
obvious error, we conclude Pineda has not shown an effect on his substantial
rights: in the light of the jury’s rejection of his testimony that he was
personally threatened, he has not shown a reasonable probability a broader
instruction encompassing the similar-claimed threats against his family would
have resulted in a different verdict. See id. at 135; United States v. McClatchy,
249 F.3d 348, 357 (5th Cir. 2001).
As for his sentences, Pineda’s challenges to the calculation of his offense
level fail under the standards of review applicable to each of the three offense-
level adjustments at issue. Although post-Booker, the Guidelines are advisory
only, the district court must avoid significant procedural error, such as
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improperly calculating the Guidelines sentencing range. Gall v. United States,
552 U.S. 38, 48–51 (2007). If no such procedural error exists, a properly
preserved objection to an ultimate sentence is reviewed for substantive
reasonableness under an abuse-of-discretion standard. Id. at 51; United States
v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for
issues preserved in district court, its application of the Guidelines is reviewed
de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
An offense-level reduction for acceptance of responsibility, pursuant to
Guideline § 3E1.1(a) was denied because of Pineda’s reckless flight from arrest
and his trial testimony denying knowledge that methamphetamine was being
transported. That denial was not without foundation. See United States v.
Rudzavice, 586 F.3d 310, 315 (5th Cir. 2009).
The application of the two-level Guideline § 3B1.1(c) offense-level
adjustment (leader or organizer of criminal activity enhancement) was
plausible in the light of Pineda’s supervision of the driver before, and during,
the smuggling trips. See, e.g., United States v. Cooper, 274 F.3d 230, 247 (5th
Cir. 2001).
And, the application of the two-level Guideline § 3C1.2 offense-level
adjustment (reckless endangerment) was plausible in the light of testimony
that Pineda narrowly avoided hitting law-enforcement officers while fleeing
during a high-speed chase. See United States v. Gillyard, 261 F.3d 506, 510
(5th Cir. 2001).
AFFIRMED.
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