     Case: 14-10467      Document: 00513001041         Page: 1    Date Filed: 04/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10467
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 10, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

AUSTREBERTA MACEDO-FLORES,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:13-CR-281-4


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Austreberta Macedo-Flores (Macedo) appeals following her jury
convictions for one count of conspiracy to possess with intent to distribute a
controlled substance and two counts of possession with intent to distribute a
controlled substance. Macedo argues that the district court erred by denying
her motion for a new trial, that the district court erred by not granting a
minimal role adjustment, and that her sentence is substantively unreasonable.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10467     Document: 00513001041     Page: 2   Date Filed: 04/10/2015


                                   No. 14-10467

         At trial, an FBI linguist testified that she listened to recorded
conversations made while Macedo was incarcerated, between Macedo and
family members. The recorded conversations were not played for the jury or
introduced into evidence. Macedo contends that the recorded conversations
were not properly authenticated and that they were not produced to the
defense prior to trial, which violated the rules of discovery; she raised these
arguments for the first time in her motion for a new trial.
         Because Macedo first raised the authentication and discovery violation
arguments in her motion for a new trial, plain error review applies. United
States v. Garcia, 567 F.3d 721, 726 n.2 (5th Cir. 2009). Macedo thus must show
a clear or obvious forfeited error affecting her substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If she makes this showing, we have
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
         Authentication is a condition precedent to the admission of evidence and
is satisfied when a party presents “evidence sufficient to support a finding that
the item is what the proponent claims it is.” FED. R. EVID. 901(a). Here, it is
undisputed that the recorded conversations were not admitted into evidence at
trial.    Because Macedo offers no authority that the recordings required
authentication, she cannot establish plain error. See United States v. Evans,
587 F.3d 667, 671 (5th Cir. 2009); Puckett, 556 U.S. at 135; FED. R. EVID. 901.
         Next, Macedo argues that the Government violated the rules of discovery
by not providing copies of the recorded conversations prior to trial. We will not
order a new trial based on alleged discovery violations unless the defendant
shows that a denial of access to evidence was prejudicial to her substantial
rights. United States v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998). This requires
a showing of “a reasonable probability that, had the evidence been disclosed to



                                         2
    Case: 14-10467    Document: 00513001041     Page: 3   Date Filed: 04/10/2015


                                 No. 14-10467

the defense, the result of the proceeding would have been different.” United
States v. Webster, 162 F.3d 308, 336 (5th Cir. 1998) (internal quotation marks
and citation omitted). Such a probability is shown “where the nondisclosure
could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the jury verdict.” Webster, 162 F.3d at 336.
      The trial evidence shows that on April 24, 2013, Macedo sold
methamphetamine to an undercover officer in a shed behind her home and that
at least twice, she accepted the delivery of methamphetamine for sale. Based
on the foregoing, any nondisclosure of the recorded conversations could not
reasonably be shown to undermine confidence in the jury’s verdict on Macedo’s
convictions for one count of conspiracy to possess with intent to distribute a
controlled substance and two counts of possession with intent to distribute a
controlled substance. See id.; 21 U.S.C. §§ 841, 846.
      Macedo next argues that the district court clearly erred in denying a
four-level reduction for her minimal role in the offense, She asserts that her
son directed her to deliver the package to the undercover agent; she was
unaware that it contained drugs; she was linked to only one sale; and she was
not recorded on any wiretaps. Under U.S.S.G § 3B1.2, a district court may
decrease a defendant’s offense level by four levels if the defendant was a
minimal participant in the criminal activity. Whether the defendant is a
minimal participant is a factual determination that is reviewed for clear error.
United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005).
      The record reflects that Macedo participated in numerous sales of
methamphetamine, she accepted at least four to five deliveries of
methamphetamine, and a shed behind her home was used to conduct the drug
conspiracy. Thus, the district court’s finding that she was not a minimal




                                       3
    Case: 14-10467    Document: 00513001041     Page: 4   Date Filed: 04/10/2015


                                 No. 14-10467

participant is plausible in light of the record as a whole. See Villanueva, 408
F.3d at 203.
      Finally, Macedo argues that her sentence is substantively unreasonable
given her lack of any prior criminal history and her minor role in the offense.
Because she did not object to the reasonableness of her sentence, our review is
for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007). When the district court imposes a sentence within a properly calculated
guidelines range, the sentence is entitled to a presumption of reasonableness
that may be rebutted only if the defendant establishes that “the sentence does
not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). We have also indicated that a below-guidelines
sentence appealed by the defendant is afforded a rebuttable presumption of
reasonableness. See United States v. Murray, 648 F.3d 251, 258 (5th Cir.
2011).
      The district court considered Macedo’s arguments in mitigation, the
materials submitted to the court, the 18 U.S.C. § 3553(a) factors, and the
guidelines range. The court determined that a 144-month below-guidelines
sentence was appropriate based on Macedo’s age, poverty level, relationship
with her son, and future deportation status. Macedo’s argument that the
district court should have sentenced her even lower below the guidelines range
merely reflects her disagreement with the propriety of her sentence.         See
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). She has not shown
sufficient reason for this court to disturb the presumption of reasonableness
applicable to her sentence. Cooks, 589 F.3d at 186; Murray, 648 F.3d at 258.
      Accordingly, the judgment of the district court is AFFIRMED.



                                       4
