United States v. Cardoza , 136 F. App'x 700 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-41120
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR CARDOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-902-1
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Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Hector Cardoza appeals from his conviction or possession
with intent to distribute cocaine and importation of cocaine.
Cardoza contends that the district court erred by denying his
motion to suppress his confession. He further contends that the
district court committed reversible plain error by sentencing him
under the then-mandatory Sentencing Guidelines and that his
sentence violated the Sixth Amendment because he was sentenced on
*
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this opinion should not be published and is not precedent except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. 04-41120
-2-
an amount of cocaine greater than the amount that was charged in
the indictment and proven at trial.
Cardoza has not demonstrated that his confession was not
made as the result of his free and rational choice in the
totality of the circumstances. See United States v. Bell, 367
F.3d 452, 461 (5th Cir. 2004). The trickery employed by one
agent to obtain a confession backfired and angered Cardoza, and
another agent attempted to trick Cardoza after Cardoza already
had begun to speak to the agents. Moreover, the trickery
employed by the officers did not deprive Cardoza of the knowledge
essential to his understanding of his rights and the consequences
of waiving them. See Soffar v. Cockrell, 300 F.3d 588, 596 (5th
Cir. 2002) (en banc). Finally, Cardoza has not demonstrated that
his detention for seven hours without food and with minimal
liquid refreshment rendered his confession involuntary. See
Muniz v. Johnson, 132 F.3d 214, 219 n.8 (5th Cir. 1998); United
States v. Bustamante-Saenz, 894 F.2d 114, 120 (5th Cir. 1990).
Cardoza’s sentence was based on the amount of cocaine
alleged in the indictment and proved to the jury. In Cardoza’s
case, the failure to instruct on the precise amount of cocaine
did not affect Cardoza’s substantial rights and did not
constitute reversible plain error. See United States v. Delgado,
256 F.3d 264, 280 (5th Cir. 2001). Moreover, Cardoza cannot
demonstrate reversible plain error regarding his sentencing under
the then-mandatory guideline sentencing scheme. See United
No. 04-41120
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States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. Apr.
25, 2005). Cardoza presented an argument for leniency that was
rejected, and he was sentenced towards the high end of the
applicable sentencing range. He cannot show that his sentence
would have been significantly different under an advisory
sentencing scheme. See United States v. Mares, 402 F.3d 511, 521
(5th Cir. 2005), petition for cert. filed, No. 04-9517 (U.S. Mar.
31, 2005).
AFFIRMED.