United States v. Julio Cardenas , 606 F. App'x 246 ( 2015 )

Menu:

     Case: 13-41334      Document: 00513075478         Page: 1    Date Filed: 06/11/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-41334
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 11, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JULIO CESAR CARDENAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-512-1
USDC No. 1:13-CR-171-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Julio Cesar Cardenas appeals the sentence
imposed following his jury trial conviction for (1) conspiracy to possess with
intent to distribute five kilograms or more of cocaine, (2) conspiracy to possess
with intent to distribute 100 kilograms or more of marijuana, (3) operating an
unlicensed money transmitting business, (4) two counts of possession of less
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41334     Document: 00513075478      Page: 2   Date Filed: 06/11/2015
No. 13-41334
than 50 kilograms of marijuana with intent to distribute, (5) two counts of
possession of five kilograms or more of cocaine with intent to distribute, (6) five
counts of possession of 100 kilograms or more of marijuana with intent to
distribute, (7) four counts of possession of 50 kilograms or more of marijuana
with intent to distribute, and (8) possession of a firearm by a convicted felon.
The district court sentenced Cardenas to a mandatory life sentence based on
his three prior felony drug convictions.
For the first time on appeal, Cardenas raises four issues: (1) violation of
his constitutional rights under Apprendi v. New Jersey,

530 U.S. 466

(2000),
and Alleyne v. United States,

133 S. Ct. 2151

(2013), by raising his statutory
minimum sentence based on prior convictions that were not charged in the
indictment or proven to the jury beyond a reasonable doubt; (2) wrongly
treating his three related prior felony drug convictions as separate convictions
instead of as a single conviction; (3) violation of Alleyne by increasing his
guidelines sentence range based on facts not found by a jury beyond a
reasonable doubt; and (4) violation of the Eighth Amendment by imposing
sentences that were grossly disproportionate to his crimes. As Cardenas did
not raise these issues in the district court, we review for plain error only. See
United States v. Salazar,

542 F.3d 139

, 147 (5th Cir. 2008). To establish plain
error, Cardenas must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States,

556 U.S. 129

, 135
(2009). If he makes such a showing, we have the discretion to correct the error,
but we should do so only if the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.

Id. As Cardenas

concedes, his Apprendi and Alleyne argument, his second
Alleyne argument, and his Eighth Amendment argument are foreclosed. See
Almendarez-Torres v. United States,

523 U.S. 224

, 239-47 (1998); Harmelin v.
2
Case: 13-41334    Document: 00513075478     Page: 3   Date Filed: 06/11/2015
No. 13-41334
Michigan,

501 U.S. 957

, 961, 994-96 (1991); Rummel v. Estelle,

445 U.S. 263

,
284-85 (1980); United States v. Wallace,

759 F.3d 486

, 497 (5th Cir. 2014);
United States v. Tuma,

738 F.3d 681

, 693 (5th Cir. 2013), cert. denied, 134 S.
Ct. 2875 (2014). Cardenas’s prior felony drug convictions were for offenses that
were committed sequentially, not simultaneously, so the district court did not
commit error, plain or otherwise, by treating them as separate convictions. See
United States v. Barr,

130 F.3d 711

, 712 (5th Cir. 1997). Cardenas urges us
not to follow Barr and adopt the precedent of other circuits, but we may not
overrule the holding in Barr absent an intervening statutory change, Supreme
Court decision, or en banc decision of this court. See Jacobs v. Nat’l Drug
Intelligence Ctr.,

548 F.3d 375