United States v. Mario Viveros-Hernandez , 578 F. App'x 467 ( 2014 )

Case: 13-11385 Document: 00512741844 Page: 1 Date Filed: 08/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-11385
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 21, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MARIO VIVEROS-HERNANDEZ, also known as Mario Viveres-Hernandez,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-104-3
Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
Mario Viveros-Hernandez appeals his guilty plea conviction and
sentence for conspiracy to possess with intent to distribute a controlled
substance. He raises four claims of error on appeal.
First, Viveros-Hernandez contends that he entered an involuntary guilty
plea because the district court did not comply with Federal Rule of Criminal
Procedure 11 at his rearraignment. Specifically, he notes the court’s failure to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11385
ask whether his plea was the result of force or threats and to advise that he
could be denied admission to the United States if he pleaded guilty. Viveros-
Hernandez has shown no clear or obvious error. See United States v. De La
Cruz-Trejo, 518 F. App’x 286, 287 (5th Cir. 2013); United States v. Henry, 113
F.3d 37, 41-42 (5th Cir. 1997). Even if he had, the record does not indicate
that, but for the district court’s omissions, there is a reasonable probability he
would not have pleaded guilty. See United States v. Dominguez Benitez, 542
U.S. 74, 83 (2004). Therefore, he has not shown that his substantial rights
were affected, and he cannot prevail on plain error review. See id.Second, Viveros-Hernandez contends that the district court abused its
discretion by sua sponte continuing his sentencing hearing. Because the
continuance permitted the district court to obtain accurate and complete drug
quantity information on which Viveros-Hernandez’s offense level was based,
he has not shown the requisite prejudice. See United States v. Correa-Ventura,
6 F.3d 1070, 1074 (5th Cir. 1993). Accordingly, the district court’s decision to
grant a continuance was not an abuse of discretion. See id.Third, Viveros-Hernandez contends that the district court clearly erred
in declining to award a minor role adjustment of his offense level because he
acted solely as a courier on only one day of the eight-month conspiracy. The
record indicates that Viveros-Hernandez’s role was “coextensive with the
conduct for which he was held accountable.” See United States v. Garcia, 242
F.3d 593, 598 (5th Cir. 2001). Moreover, unrebutted statements in the
presentence report and addenda indicate that Viveros-Hernandez was no less
culpable than his co-defendants and more involved in the conspiracy;
transported 558.1 grams of methamphetamine from Houston to Dallas; met
his co-conspirators in a motel parking lot; helped retrieve the drugs from his
trunk; and drove to an adjacent parking lot to watch the next drug transaction.
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No. 13-11385
The denial of a role reduction was “plausible in light of the record read as a
whole.” United States v. Silva-De Hoyos, 702 F.3d 843, 846 (5th Cir. 2012); see
also United States v. Franklin, 561 F.3d 398, 407 (5th Cir. 2009). Accordingly,
we find no clear error.
Finally, Viveros-Hernandez argues that his bottom-of-the-guidelines
sentence is substantively unreasonable because it does not account for his
history and characteristics, the nature and circumstances of his offense, the
need to avoid unwarranted sentencing disparities between similarly situated
persons, and the kinds of sentences available. We decline Viveros-Hernandez’s
invitation to reweigh the 18 U.S.C. § 3553(a) factors because the district court
was “in a superior position to find facts and judge their import under § 3553(a).”
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
Furthermore, Viveros-Hernandez has not shown that the challenged difference
between his sentence, which was based on accurate drug quantity information,
and his co-conspirator’s sentence, which was not, is the type of unwarranted
sentencing disparity that Congress sought to eliminate under § 3553(a)(6). See
Pepper v. United States, 131 S. Ct. 1229, 1248-49 (2011). Viveros-Hernandez
fails to rebut the presumption that his within-guidelines sentence is
substantively reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).
Accordingly, the judgment of the district court is AFFIRMED.
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