United States v. Elias Barrera, Jr. , 697 F. App'x 373 ( 2017 )

Case: 16-50697 Document: 00514154784 Page: 1 Date Filed: 09/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50697 FILED
Summary Calendar September 13, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ELIAS SAMORA BARRERA, JR., also known as Elias Samora Barrera,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-347-1
Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM: *
Elias Samora Barrera, Jr., appeals the sentence imposed after he
pleaded guilty to possessing with intent to distribute methamphetamine. He
challenges the two-level increase under U.S.S.G. § 2D1.1(b)(2) for making a
credible threat to use violence.
Barrera first argues that, as a matter of law, threats may not be counted
against him unless the Government proved that he made a threat of violence
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50697
during the commission of the crime itself, rather than as part of the relevant
conduct of the offense. We review only for plain error because Barrera did not
make this argument in the district court in a manner that would “alert the
district court to the nature of the alleged error and . . . provide an opportunity
for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). He
must therefore show, at minimum, a legal error that was “clear or obvious,
rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S.
129, 135 (2009).
Barrera relies on background commentary to the Fair Sentencing Act
that he says narrows the application of § 2D1.1(b)(2) to threats made “during”
the actual offense. But “during” does not appear in § 2D1.1 or its commentary.
Further, the relevant conduct Guideline, U.S.S.G. § 1B1.3(a)(1), applies unless
specified otherwise, and nothing in the Guidelines themselves suggests that
§ 1B1.3(a)(1) does not apply to § 2D1.1. Barrera fails to show a legal error that
is clear or obvious beyond reasonable dispute. See Puckett, 556 U.S. at 135;
United States v. Rodriguez-Parra, 581 F.3d 227, 231 (5th Cir. 2009) (finding no
clear or obvious error where the argument relied on “a careful parsing of all
the relevant authorities, including the sentencing guidelines and applicable
decisions”).
We review for clear error the district court’s factual finding that Barrera
made credible threats of violence. See United States v. Betancourt, 422 F.3d
240, 246 (5th Cir. 2005). “A factual finding is not clearly erroneous as long as
it is plausible in light of the record as a whole.” Id. (internal quotation marks
and citation omitted). We also review for clear error the district court’s
reasonable inferences from the facts. See United States v. Caldwell, 448 F.3d
287, 290 (5th Cir. 2006). The sentencing court was allowed to rely on the facts
recounted in the presentence report unless Barrera demonstrated by
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No. 16-50697
competent rebuttal evidence that the information is “materially untrue,
inaccurate or unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th Cir.
2012) (internal quotation marks and citation omitted).
The record reflects evidence that Barrera was the only member of the
Texas Mexican Mafia (TMM) in the area. There was also evidence that he
collected the “dime,” which was a “tax” on non-TMM drug dealers in the area,
and that collecting the dime inherently involved a threat of violent
enforcement. Barrera offered no rebuttal evidence showing that this
information as reflected in the presentence report was unreliable, inaccurate,
or materially untrue. See Harris, 702 F.3d at 230. Additional evidence showed
that Barrera issued a death threat to an informant, and Barrera can only
speculate that the target of the threat did not find the threat credible. The
district court’s “credible threat” finding is plausible and thus not clearly
erroneous in light of the record and inferences as a whole. See Caldwell, 448
F.3d at 290; Betancourt, 422 F.3d at 246.
The judgment is AFFIRMED.
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