United States v. Valentin Monjaras-Pichardo , 583 F. App'x 377 ( 2014 )

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     Case: 13-11134      Document: 00512817421         Page: 1    Date Filed: 10/28/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-11134
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 28, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
VALENTIN MONJARAS-PICHARDO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-30-21
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Valentin Monjaras-Pichardo pleaded guilty to conspiracy to possess with
the intent to distribute 100 grams or more of a mixture containing heroin. He
was sentenced within the guidelines range to 262 months of imprisonment, to
be followed by four years of supervised release. On appeal, Monjaras-Pichardo
argues that the district court erred in applying a two-level enhancement
pursuant to U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11134
of distributing heroin. Because Monjaras-Pichardo preserved this issue by
objecting in the district court, we review the district court’s findings of fact with
respect to sentencing under the clear error standard.             United States v.
Betancourt,

422 F.3d 240

, 244-45 (5th Cir. 2005).
Section 2D1.1(b)(12) provides a two-level enhancement if the defendant
maintained a premises for the purpose of manufacturing or distributing a
controlled substance, including storage of a controlled substance for the
purpose of distribution. Monjaras-Pichardo resided in the barn located on a
ranch owned by his coconspirator and assisted in the distribution of heroin and
the collection of drug proceeds. The heroin was retrieved from the barn by
coconspirators and taken to stash apartments. In his signed factual resume,
Monjaras-Pichardo admitted that he received heroin from Mexico at his
residence. Additionally, 35.42 grams of heroin were discovered in the barn.
Regarding the Chariot Drive apartment, Monjaras-Pichardo rented the
apartment, which was used as a stash house. In light of these facts, it is
plausible that Monjaras-Pichardo had a possessory interest in both the barn
and apartment and that the storing or distributing of heroin was a principal or
primary use, rather than an incidental use, of the barn and apartment. See
§ 2D1.1(b)(12) & comment. (n.17). Monjaras-Pichardo has not shown that the
district court clearly erred in applying the enhancement. See § 2D1.1(b)(12) &
comment. (n.17);

Alaniz, 726 F.3d at 618

.
Monjaras-Pichardo next argues that the district court clearly erred in
denying a downward adjustment for having a mitigating role in the offense. If
a defendant is a minor participant in an offense, his offense level should be
decreased by two. U.S.S.G. § 3B1.2(b). A defendant is a “minor participant”
in an offense if his role is more than minimal but he is “less culpable than most
other participants.” § 3B1.2, comment. (n.5).
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No. 13-11134
The facts showed that Monjaras-Pichardo received heroin from Mexico
at his residence and was responsible for collecting and packaging the drug
proceeds, which were stored in the barn where he resided. These actions do
not show that his involvement was “peripheral to the advancement of the
criminal activity.” United States v. Martinez-Larraga,

517 F.3d 258

, 272 (5th
Cir. 2008).   On the contrary, Monjaras-Pichardo’s role was central to the
conspiracy. Accordingly, he fails to show that the district court clearly erred
in denying a reduction for a mitigating role. See § 3B1.2, comment. (n.5);
United States v. Villanueva,

408 F.3d 193

, 203 (5th Cir. 2005).
Challenging the substantive reasonableness of his sentence, Monjaras-
Pichardo asserts that the district court erred in refusing to grant a downward
variance based on his role in the offense and to avoid unwarranted disparities.
Because Monjaras-Pichardo’s sentence was within the guidelines range, it is
presumptively reasonable. See United States v. Cooks,

589 F.3d 173

, 186 (5th
Cir. 2009).   Monjaras-Pichardo’s role in the offense was central to the
conspiracy, and he fails to show how his role warranted a sentence below the
guidelines range. He has not established the existence of any sentencing
disparity because he does not cite any evidence that lower sentences have been
imposed in the cases of his coconspirators or in cases with facts substantially
similar to his case. See United States v. Sanchez-Ramirez,

497 F.3d 531

, 535
n.4 (5th Cir. 2007).        Monjaras-Pichardo’s argument amounts to a
“disagreement with the propriety of the sentence imposed” and does not rebut
the presumption of reasonableness. United States v. Ruiz,

621 F.3d 390

, 398
(5th Cir. 2010); see

Cooks, 589 F.3d at 186

.
For the first time on appeal, Monjaras-Pichardo argues that the district
court’s determination of the amount of heroin for which he was held
responsible at sentencing violated his Sixth Amendment rights. He asserts
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No. 13-11134
that the district court’s factual finding that he was responsible for 270
kilograms of heroin violated the holding in Alleyne v. United States,

133 S. Ct. 2151

(2013).
Because Monjaras-Pichardo did not object on this basis in the district
court, review is limited to plain error. See United States v. Hinojosa,

749 F.3d 407

, 411 (5th Cir. 2014). The district court imposed a sentence within the
guidelines range based on relevant conduct, and the facts did not have to be
admitted by Monjaras-Pichardo or found by a jury. See

Hinojosa, 749 F.3d at 412-13