United States v. Morante , 280 F. App'x 431 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 6, 2008
No. 07-10638
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROCKEY MORANTE
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-183-2
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Rockey Morante appeals the sentence imposed following his guilty plea
conviction for possession with intent to distribute 50 grams or more of a mixture
and substance containing a detectable amount of methamphetamine. See 21
U.S.C. § 841(a)(1) and (b)(1)(B). He argues that the district court erred in
increasing his offense level pursuant to U.S.S.G. § 3C1.2, and he asks that the
two-level increase be set aside as not proved. He asks in the alternative that he
*
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should not be published and is not precedent except under the limited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.
No. 07-10638
be resentenced under the “new standard” of law set out by Gall v. United States,
128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007).
We review the procedural soundness and substantive reasonableness of
Morante’s sentence under the abuse-of-discretion standard of review. See Gall,
128 S. Ct. at 597. Whether a defendant’s conduct constitutes reckless
endangerment during his flight from law enforcement under § 3C1.2 is a factual
finding reviewed for clear error. See United States v. Cisneros-Guiterrez, 517
F.3d 751, 764 (5th Cir. 2008); United States v. Lugman, 130 F.3d 113, 115-16
(5th Cir. 1997).
To the extent that Morante challenged the facts stated in the presentence
report (PSR) to support the § 3C1.2 enhancement, he bore the burden to
demonstrate that such facts were “materially untrue.” Lugman, 130 F.3d at 116.
Although, in his written objections to the PSR, Morante presented a different
version from the PSR regarding what happened when he fled law enforcement,
he failed to offer any evidence at sentencing to show that the PSR’s statements
were “materially untrue.” Accordingly, as the PSR provided that Morante’s car
was traveling at a “high rate of speed,” that his car “spun out of control,” that he
hit a parked car belonging to a resident, and that, as a result of the chase, the
passenger in his car was killed, the district court did not clearly err in finding
sufficient evidence of reckless endangerment during flight to support an increase
under § 3C1.2. See United States v. Jimenez, 323 F.3d 320, 321-24 (5th Cir.
2003). Moreover, because the district court imposed a sentence within the
properly calculated guidelines range, it is presumptively reasonable. Gall, 128
S. Ct. at 597; Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Finally, there is nothing in either Gall or Kimbrough that mandates a new
sentencing hearing in this case. See Gall, 128 S. Ct. 586; Kimbrough, 128 S. Ct.
558. Accordingly, as Morante has not demonstrated any abuse of discretion by
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No. 07-10638
the district court in imposing his sentence, see Gall, 128 S. Ct. at 594, his
sentence is AFFIRMED.
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