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United States v. Hector DeHoyos , 616 F. App'x 204 ( 2015 )


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  •      Case: 14-50946   Document: 00513218699   Page: 1   Date Filed: 10/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50946                              FILED
Summary Calendar                      October 5, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HECTOR DEHOYOS,
Defendant-Appellant
----------------------------------------
Consolidated with No. 14-50947
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HECTOR DE HOYOS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:08-CR-747
USDC No. 2:12-CR-1709
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
Case: 14-50946      Document: 00513218699         Page: 2    Date Filed: 10/05/2015
No. 14-50946
c/w
No. 14-40947
PER CURIAM: *
Hector DeHoyos appeals his jury conviction for conspiracy to possess
with intent to distribute marijuana and the sentence imposed pursuant to the
revocation of his supervised release. We affirm.
DeHoyos argues that the evidence was insufficient to establish his actual
possession of the marijuana and that, at best, the trial testimony merely raised
the possibility of a connection between himself and the marijuana, which was
insufficient to support the jury’s verdict. To sustain a conviction for conspiracy
to possess with intent to distribute, the Government must prove (1) the
existence of an agreement to possess marijuana with the intent to distribute,
(2) knowledge of the agreement, and (3) voluntary participation in the
agreement.      United States v. Brito,
    136 F.3d 397
    , 409 (5th Cir. 1998).
Reviewing his sufficiency-of-the-evidence claim de novo, and viewing the
evidence in the light most favorable to the jury’s verdict, we hold that the
evidence was sufficient to establish DeHoyos’s voluntary participation in an
actual agreement to possess marijuana with intent to distribute. See United
States v. Compian-Torres,
    712 F.3d 203
    , 206 (5th Cir. 2013); United States v.
Treft,
    447 F.3d 421
    , 424 (5th Cir. 2006); United States v. DeSimone,
    660 F.2d 532
    , 537-38 (5th Cir. 1981).
With regard to his revocation sentence, DeHoyos argues that the district
court procedurally erred when it failed to articulate a rationale for running the
27-month revocation sentence consecutively to the 120-month sentence
imposed on the conspiracy charge. DeHoyos, however, did not object to the
sentence on this basis in the district court; therefore, review is for plain error
* 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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Case: 14-50946     Document: 00513218699     Page: 3   Date Filed: 10/05/2015
No. 14-50946
c/w
No. 14-40947
only. See United States v. Warren,
    720 F.3d 321
    , 326-27 (5th Cir. 2013). The
record does not support DeHoyos’s contention that the district court failed to
articulate reasons for the sentence. To the contrary, the court stated that
running the sentences consecutively would provide sufficient deterrence to
avoid any future criminal activity and also made reference to DeHoyos’s
history and characteristics. See
    18 U.S.C. § 3553
    (a)(1), (2)(B). As such, he has
shown no clear or obvious procedural error in this regard. See Puckett v. United
States,
    556 U.S. 129
    , 135 (2009).
DeHoyos also raises a challenge to the substantive reasonableness of the
within-guidelines revocation sentence. His objection in the district court was
sufficient to preserve its review under the plainly unreasonable standard. See
Warren, 720 F.3d at 326. Because his 27-month revocation sentence falls
within the applicable advisory guidelines range and is consistent with U.S.S.G.
§ 7B1.3(f) (mandating “[a]ny term of imprisonment imposed upon the
revocation of . . . supervised release shall be ordered to be served consecutively
to any sentence of imprisonment that the defendant is serving”), it is entitled
to a presumption of reasonableness.         See, e.g., United States v. Lopez-
Velasquez,
    526 F.3d 804
    , 808-09 (5th Cir. 2008). His argument that the within-
guidelines sentence was greater than necessary to achieve goals of § 3553(a) is
purely conclusional. Having failed to rebut the presumption of reasonableness,
he has not shown his revocation sentence to be plainly unreasonable. See
Warren, 720 F.3d at 326.
AFFIRMED.
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