United States v. Mario Granados ( 2020 )

Case: 19-50190 Document: 00515481995 Page: 1 Date Filed: 07/08/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50190
July 8, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO DANIEL GRANADOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:17-CR-1978-2
Before OWEN, Chief Judge, and SOUTHWICK, and WILLETT, Circuit
Judges.
PER CURIAM: *
Mario Daniel Granados was convicted of conspiracy to import 500 grams
or more of cocaine, importation of 500 grams or more of cocaine, conspiracy to
possess with intent to distribute 500 grams or more of cocaine, and possession
with intent to distribute 500 grams or more of cocaine. The district court
sentenced him at the bottom of the guidelines range to concurrent terms of 151
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-50190 Document: 00515481995 Page: 2 Date Filed: 07/08/2020
No. 19-50190
months of imprisonment, followed by concurrent five-year terms of supervised
release. Granados now appeals, asserting that the district court erred by
adopting the drug quantity relevant conduct calculation contained in the
presentence report. He maintains that the drug quantity relevant conduct
calculation was based on his unindicted co-conspirator’s unsubstantiated
statements.
We review the district court’s determination of drug quantity for clear
error and will affirm the finding so long as it is “plausible in light of the record
as a whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)
(internal quotation marks and citation omitted). The district court’s drug
quantity relevant conduct calculation was plausible in light of the record as a
whole, including the reports of investigation and evidence adduced at trial. See
id.
Granados also asserts that the district court violated Federal Rule of
Criminal Procedure 43(a) by holding a sealed bench conference outside of his
presence during the sentencing hearing. Because Granados did not raise this
issue in the district court, this court’s review is for plain error. See United
States v. Thomas, 724 F.3d 632, 641-42 (5th Cir. 2013). To establish plain
error, Granados must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If those requirements are satisfied, this court has the discretion to
correct the error but only if it “‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (alteration in original) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)). Rule 43(a) provides that a
“defendant must be present at . . . sentencing.” FED. R. CRIM. P. 43(a)(3).
Granados was in the courtroom during the bench conference, defense counsel
was at the bench and participated in the conference, and the district court
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Case: 19-50190 Document: 00515481995 Page: 3 Date Filed: 07/08/2020
No. 19-50190
explained to Granados what had happened after the conference ended.
Accordingly, Granados has not shown any clear or obvious error. See Puckett,
556 U.S. at 135. Moreover, Granados has not even attempted to explain how
any error affected the outcome of the proceeding and thus affected his
substantial rights. See Thomas, 724 F.3d at 645.
AFFIRMED.
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