eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2006-04

United States v. Cisneros , 176 F. App'x 572 ( 2006 )


Menu:
 
  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                  April 17, 2006
Charles R. Fulbruge III
Clerk
No. 04-41617
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME CISNEROS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:02-CR-233-2
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jaime Cisneros appeals his guilty-plea conviction and
sentence for conspiracy to possess with intent to distribute
more than 100 kilograms of marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 846.
Cisneros contends that in light of United States v. Booker,
    543 U.S. 220 
    (2005), the district court violated his Fifth and
Sixth Amendment rights when it enhanced his sentence based on the
district judge’s findings as to the drug-quantity calculation and
*
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this opinion should not be published and is not precedent except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. 04-41617
-2-
aggravated-role enhancement because these facts were neither
admitted by him nor found by a jury beyond a reasonable doubt.
Cisneros argues that he preserved Booker error by raising an
objection pursuant to Blakely v. Washington,
    542 U.S. 296 
    (2004),
in a motion to supplement the record filed after sentencing but
prior to the district court’s reinstatement of the criminal
judgment.
Cisneros did not preserve Booker error by raising a Blakely
objection in a motion filed during the pendency of his 28 U.S.C.
§ 2255 proceedings and one year after his sentence was imposed,
but prior to the district court’s reinstatement of the criminal
judgment to allow for an out-of-time appeal.   Thus, this court’s
review is for plain error.    See United States v. Mares,
    402 F.3d 511
    , 520 (5th Cir.), cert. denied,
    126 S. Ct. 43 
    (2005).
The district court erred when it sentenced Cisneros pursuant
to the mandatory guidelines system held unconstitutional in
Booker.   See United States v. Valenzuela-Quevedo,
    407 F.3d 728
    ,
733 (5th Cir.), cert. denied,
    126 S. Ct. 267 
    (2005).    However,
Cisneros has failed to point to any statements in the record
indicating that the same sentence would not have been imposed had
the district court known that the Guidelines were advisory.    The
record itself gives no indication that the district court would
have reached a different result under an advisory guidelines
system.   In fact, the district court sentenced Cisneros at the
middle of the guidelines range.    Given the lack of any indication
No. 04-41617
-3-
in the record that the district court would have reached a
different conclusion, Cisneros has not demonstrated that his
substantial rights were affected, and, thus, he has failed to
establish plain error.   See
    Mares, 402 F.3d at 520-22
    .
Cisneros also contends that the district court clearly erred
when it found that he committed the instant offense while on
probation because the relevant conduct attributed to him in the
presentence report took place on dates either prior to or after
the probation period.
A district court’s calculation of a defendant’s criminal
history category is a finding of fact that this court reviews for
clear error.   United States v. Martinez-Moncivais,
    14 F.3d 1030
    ,
1038 (5th Cir. 1994); see also United States v. Villanueva,
    408 F.3d 193
    , 203 & n.9 (5th Cir.), cert. denied,
    126 S. Ct. 268 
    (2005).   “A factual finding is not clearly erroneous as long as
it is plausible in light of the record read as a whole.”     United
States v. Shipley,
    963 F.2d 56
    , 58 (5th Cir. 1992) (internal
quotation marks and citation omitted).
The district court’s factual finding that Cisneros committed
the instant offense while on probation is plausible in light of
the record as a whole.   Cisneros was on probation during part of
the time period set forth in the count of conviction.     Although
the Government did not present specific evidence of an overt act
within the probation period, there is no indication that Cisneros
withdrew from the conspiracy at any time during this period.
No. 04-41617
-4-
Therefore, the district court did not clearly err in finding that
Cisneros committed the instant offense while on probation.     See
United States v. Trevino,
    131 F.3d 1140
    , 1141 (5th Cir. 1997).
Accordingly, the district court’s judgment is AFFIRMED.