     Case: 14-50792      Document: 00513076973         Page: 1    Date Filed: 06/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                    No. 14-50792
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            June 12, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,
                                                 Plaintiff–Appellee,
versus
FERNANDO BARRAZA-REVELES,
                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-1106




Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *

       Fernando Barraza-Reveles was convicted by a jury of one count each of
conspiracy to possess with intent to distribute methamphetamine (“meth”),
possession of meth with intent to distribute, conspiracy to import meth, and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50792

importation of meth. The district court sentenced him, below the guideline
range, to concurrent 240-month sentences and three years’ supervised release.

      Barraza-Reveles claims that the court should not have instructed the
jury that it could consider whether exculpatory statements made by him, which
were later determined to be false, could be considered as evidence of guilty
knowledge. Barraza-Reveles maintains that the instruction may have led the
jury to believe that the court was expressing an opinion that a false statement
had in fact been made, that the court did not advise the jurors that they should
consider the statements in light of the other evidence presented, that the
court’s examples of possible innocent explanations for false statements did not
apply to Barraza-Reveles’s particular case, the jurors may not have thought
that they could consider other innocent explanations, and that the examples
given improperly shifted the burden to the defense.

      Because Barraza-Reveles objected to the instruction, we review for abuse
of discretion. See United States v. Orji-Nwosu, 549 F.3d 1005, 1008 (5th Cir.
2008). “We consider whether the charge, as a whole, was a correct statement
of the law and whether it clearly instructed the jurors as to the principles of
the law applicable to the factual issues confronting them.” Id. (internal quota-
tion marks and citation omitted). Having done so, we conclude that the jury
was properly informed of its duty to determine the facts, its duty to consider
all of the evidence, the burden of proof on the government, and the fact that
the defense was not required to present evidence or prove innocence. See id.

      Barraza-Reveles asserts that his sentence is substantively unreasona-
ble. He maintains that the guideline governing importing or trafficking of
meth, U.S.S.G. § 2D1.1, is not empirically based and thus overstates the seri-
ousness of his offense. Additionally, Barraza-Reveles maintains that the court
should have given a lower sentence in light of his favorable personal


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                                 No. 14-50792

characteristics and lack of a criminal history. Barraza-Reveles preserved his
request for a downward variance based on his personal characteristics, and we
review the argument for an abuse of discretion. See Gall v. United States, 552
U.S. 38, 51 (2007). He did not, however, assert that a variance was warranted
based on the lack of an empirical basis for the guideline, so we review that
contention for plain error only. See Puckett v. United States, 556 U.S. 129, 135
(2009); United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).

      Barraza-Reveles’s contention that the court should have taken into
account the empirical basis for the meth guideline is foreclosed. See, e.g.,
United States v. Duarte, 569 F.3d 528, 530–31 (5th Cir. 2009). Furthermore,
his general disagreement with the propriety of the sentence and the district
court’s weighing of the 18 U.S.C. § 3553(a) factors does not establish that the
court failed to account for a significant factor, gave significant weight to an
improper factor, or clearly erred in weighing sentencing factors. See United
States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015). Barraza-Reveles has not
demonstrated that the court erred by sentencing him to a below-guideline sen-
tence. See Puckett, 556 U.S. at 135; Gall, 552 U.S. at 51.

      The judgment of conviction and sentence is AFFIRMED.




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