      Case: 18-50056     Document: 00515111142        Page: 1    Date Filed: 09/10/2019




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

                                     No. 18-50056                         FILED
                                                                  September 10, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                Plaintiff–Appellee,

versus

JOSE GUADALUPE TORRES-MAGANA,

                                                Defendant–Appellant.



                  Appeal from the United States District Court
                       for the Western District of Texas




Before SMITH, DENNIS, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

       Jose Torres-Magana pleaded guilty of conspiracy to possess with intent
to distribute five kilograms or more of cocaine. He appeals, contending that
the district court clearly erred in enhancing his sentence under U.S. SENTENC-
ING   GUIDELINES MANUAL (“U.S.S.G.”) § 2D1.1(b)(15)(A) (U.S. SENTENCING
COMM’N 2016). 1 Finding no clear error, we affirm.



       1 This section has been renumbered as § 2D1.1(b)(16)(A) effective November 1, 2018,
but the language has not changed.
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                                  No. 18-50056
                                        I.
      Torres-Magana led a drug-trafficking organization that delivered co-
caine across the country. He and his wife, Patricia Torres, met with a man in
October of 2016 to arrange cocaine deliveries. That man was an undercover
federal agent.

      Almost two months later, Torres-Magana called his stepson, Alfonso
Govea, Jr. (hereinafter “Govea”), and asked Govea to meet with him and Mrs.
Torres, Govea’s mother. When they met, Mrs. Torres demanded that Govea
meet with the agent. But Govea refused because “he knew it was something
illegal” and wanted nothing to do with it. Displeased, Torres-Magana and Mrs.
Torres argued with Govea.

      Just a few days later, Torres-Magana again tried to solicit Govea. He
called Govea and told him that he had “an emergency” and needed to take Mrs.
Torres to a cancer treatment appointment. He asked Govea to deliver a box of
cocaine that he had left outside Govea’s house. He implored Govea, stating
that he had “never asked anything” from him and that he and Mrs. Torres
would otherwise have delivered the box themselves. Again, Govea refused,
driving to Torres-Magana’s house and arguing further with the couple about
their attempts to involve Govea in the illegal delivery. But at long last, the
stepson agreed to deliver the box of cocaine.

      Though Govea was reluctant to participate in the drug delivery, he was
involved in other ways with the drug organization. Indeed, he and Mrs. Torres
co-owned businesses that laundered the drug proceeds.

      Torres-Magana was arrested and pleaded guilty of conspiracy to possess
cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 846 & 841(a)(1).
Among other enhancements, the revised presentence investigation report
(“PSR”) recommended a two-level enhancement under § 2D1.1(b)(15)(A),
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                                 No. 18-50056
because Torres-Magana had “used fear, impulse, friendship, affection, or some
combination thereof” to involve Govea in the controlled-substance offense. The
PSR pointed out that Torres-Magana had argued with Govea “on several
occasions while trying to convince him to participate in one of [his] drug-
trafficking ventures.” What’s more, Torres-Magana had pressured Govea to
participate by telling him that Torres-Magana needed to take Mrs. Torres
(Govea’s mother) to a cancer treatment appointment instead of delivering the
box of cocaine himself. And “there [wa]s no indication Govea[] received com-
pensation for his participation, nor that he had knowledge of the scope and
structure of the enterprise.”

      Torres-Magana objected to an enhancement under § 2D1.1(b)(15)(A). He
averred that the evidence did not suggest that Govea had only minimal knowl-
edge of the drug enterprise’s scope and structure—even if Govea concededly
had “minimal involvement” with it. Instead, the evidence supported the infer-
ence that Govea “was, at best, willfully blind” to the details of the drug enter-
prise. Surely Govea would not have been entrusted to deliver a box of a large
amount of cocaine alone and unsupervised if Govea lacked “substantial knowl-
edge” of the underlying enterprise. Torres-Magana also vaguely referenced
Govea’s co-ownership of a business with Govea’s mother, Mrs. Torres. And
Torres-Magana asserted that an enhancement was unwarranted because “no
one received remuneration from this particular shipment.”

      The district court overruled Torres-Magana’s objection and applied the
enhancement. The court noted that it could rely on the PSR in deciding
whether the enhancement applied and that Torres-Magana had refused to put
on any evidence outside of what was already in the record.

      Based on an offense level of 35 and a criminal-history category of I, the
guidelines recommended 168 to 210 months’ imprisonment. After considering

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                                      No. 18-50056
Torres-Magana’s presentation, the guidelines, and the 18 U.S.C. § 3553(a)
factors, the court sentenced Torres-Magana to 172 months. 2 Torres-Magana
objected to “each of the defense objections that the [c]ourt overruled” and “to
the overall sentence in light of [18 U.S.C. §] 3553.” Torres-Magana appeals,
contending that the district court clearly erred in imposing the enhancement.
                                            II.
       “Because [Torres-Magana] preserved [his objections to the enhancement]
in the district court, we review the application of the Guidelines de novo and
the district court's factual findings—along with the reasonable inferences
drawn from those facts—for clear error.” United States v. Alcantar, 733 F.3d
143, 146 (5th Cir. 2013). Under that deferential clear-error standard, “a sen-
tencing court’s factual findings will be upheld if they are plausible in light of
the record as a whole, and they will be deemed clearly erroneous only if a
review of all the evidence leaves this court with the definite and firm conviction
that a mistake has been committed.” United States v. Richard, 901 F.3d 514,
516 (5th Cir. 2018) (internal quotation marks omitted).

       Thus, even if we “would have weighed the evidence differently,” we will
not set aside—so long as they are plausible—the district court’s factual find-
ings. United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005) (internal
quotation marks omitted). Indeed, “[w]here there are two permissible views of
the evidence, the factfinder’s choice between them cannot be clearly errone-
ous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

                                            A.
       Under § 2D1.1(b)(15)(A), a district court may enhance a base offense




       2The court also noted that even if it had miscalculated the guidelines, it would have
rendered the same sentence. It reasserted as much in its written statement of reasons.
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                                      No. 18-50056
level by two levels if the defendant received a leadership-role enhancement
under U.S.S.G. § 3B1.1 and (1) “the defendant used fear, impulse, friendship,
affection, or some combination thereof to involve another individual in the
illegal purchase, sale, transport, or storage of controlled substances”; (2) “the
individual received little or no compensation from the” offense; and (3) “the
individual had minimal knowledge of the scope and structure of the enter-
prise.” U.S.S.G. § 2D1.1(b)(15)(A). 3 “The government must prove sentencing
enhancements by a preponderance of the evidence.” United States v. Juarez,
626 F.3d 246, 251 (5th Cir. 2010).

       In deciding whether to apply an enhancement, district courts may adopt
information in the PSR. See United States v. Gomez-Alvarez, 781 F.3d 787, 796
(5th Cir. 2015). “As a general rule, information in the [PSR] is presumed reli-
able and may be adopted by the district court without further inquiry if the
defendant fails to demonstrate by competent rebuttal evidence that the infor-
mation is materially untrue, inaccurate[,] or unreliable.” Id. (internal quota-
tion marks omitted). “The defendant bears the burden of demonstrating that
the information is materially untrue[,] and if the defendant fails to offer rebut-
tal evidence[,] the sentencing court is free to adopt the information without
further inquiry.” Id. (internal quotation marks omitted) (cleaned up). The
court generally should not consider a defendant’s unsworn objections and argu-
mentation “in making its factual findings.” United States v. Alfaro, 919 F.2d
962, 966 (5th Cir. 1990). 4




       3See generally United States v. Aguilar-Alonzo, No. 18-50627, 2019 U.S. App. LEXIS
25856 (5th Cir. Aug. 27, 2019).
       4 See also United States v. Gutierrez-Mendez, 752 F.3d 418, 429 (5th Cir. 2014)
(explaining that neither “[s]elf-serving statements” nor “mere objections to the PSR” are
“competent rebuttal evidence”); United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010)
(“Because no testimony or other evidence was submitted to rebut the information in the PSR,
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                                  No. 18-50056
                                       B.
      Torres-Magana challenges the district court’s findings on each prong of
the § 2D1.1(b)(15)(A) enhancement. He does not challenge, however, that he
received a leadership-role enhancement under § 3B1.1.

      First, Torres-Magana contends that the district court improperly found
that he used fear, impulse, friendship, affection, or some combination thereof
to involve Govea—his stepson—in the controlled substance offense. On that
point, he contends only that the court incorrectly “found” that Govea was
Torres-Magana’s son—instead of his stepson.

      Second, he maintains that the government has “failed to show that had
[the drug delivery] been successful, Govea[] would still not have benefited”
from the delivery. He points out that “no one received any remuneration from
this transaction,” given that the government intercepted the cocaine.

      Third, Torres-Magana avers that Govea had more than “minimal knowl-
edge” of the drug enterprise’s scope because (1) Govea ran and co-owned busi-
nesses through which he laundered the drug proceeds; (2) he “did not have to
be lured or intimidated into being a member of th[e] enterprise”; (3) he “clearly
had extensive knowledge of the workings of th[e] enterprise”; and (4) the PSR
determined that his role was not mitigating. Torres-Magana’s contentions are
not persuasive.

                                        1.
      The district court properly found that Torres-Magana used his familial
relationship with Govea—his stepson—to pressure him and involve him in the
offense. Indeed, the record is full of evidence that Govea wanted nothing to do



the district court was free to adopt the PSR’s findings without further inquiry or
explanation.”).
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                                      No. 18-50056
with the cocaine delivery and that Torres-Magana used their relationship to
overcome Govea’s opposition.

       Initially, Torres-Magana invited Govea to a meeting where Mrs. Torres
demanded that Govea meet with (someone whom the couple did not realize
was) an undercover agent. Govea refused, stating that he did not want to parti-
cipate in illegal activity. Unmoved, Torres-Magana and Mrs. Torres argued
with Govea about his refusal to get involved.

       Not to be deterred, Torres-Magana later called Govea and told him that
he had an emergency and needed to take Govea’s mother to a cancer treatment
appointment. No doubt playing on Govea’s concern for his mother, he asked
Govea to deliver to the agent a box of cocaine he had dropped off at Govea’s
house. He counseled that he had “never asked (Govea) for anything” and that,
were it not for the emergency appointment, he would have delivered it anyway.
Govea continued to push back, choosing to go to Torres-Magana and Mrs.
Torres’s house to argue with them instead of immediately delivering the box.
But Torres-Magana eventually overcame Govea’s spirited resistance. In the
end, Govea did his stepfather’s bidding—he delivered the cocaine.

       That evidence supports the finding that Torres-Magana used fear,
impulse, friendship, affection, or some combination thereof, to involve Govea
in the offense. 5 The district court did not clearly err.




       5 Torres-Magana also avers that the district court erroneously “found” that Govea was
Torres-Magana’s son, instead of his stepson. But even if it were true that the court made
such a finding, under the plain language of the enhancement, it would not matter. See
U.S.S.G. § 2D1.1(b)(15)(A). The enhancement applies to the defendant’s use of “fear, impulse,
friendship, affection, or some combination thereof.” Id. Whether the district court assumed
that Govea was Torres-Magana’s son or stepson, the inquiry is the same: Did Torres-Magana
use “some combination” of “fear, impulse, friendship, (or) affection” to involve Govea in the
offense? Id. For the reasons described above, the answer is yes, and the district court did
not clearly err in concluding as much.
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                                       No. 18-50056
                                              2.
       The record reveals nothing to suggest that Govea received compensation
for participating in the offense. Indeed, the PSR reports that “there is no indi-
cation Govea[] received compensation for his participation.”                   In response,
Torres-Magana does not proffer any evidence not already included in the PSR,
so the district court was “free to adopt” information in the PSR. See Gomez-
Alvarez, 781 F.3d at 796. At a minimum, we cannot say that it is implausible
that Govea received no compensation. 6 Thus, the district court did not clearly
err in determining that Govea was not paid for his role in the offense. 7

                                              3.
       Torres-Magana’s strongest claim for clear error is that Govea had more-
than-minimal knowledge of the drug-trafficking enterprise’s scope and struc-
ture. Torres-Magana points out that Govea had a distinct role in the organi-
zation: He “launder[ed] the drug proceeds through businesses he and his
mother own[ed].” So, Govea “clearly had extensive knowledge of the workings
of th[e] enterprise.” Although Torres-Magana’s reasoning is colorable, under
clear-error review we must uphold the findings if they are plausible in view of
the whole record. Richard, 901 F.3d at 516.

       The findings meet that deferential standard. Outside of the fact that
Govea owned businesses that laundered the drug proceeds, Torres-Magana
offers only conclusional statements—bereft of supporting evidence—that
Govea “clearly had extensive knowledge of the workings of th[e] enterprise.”
The PSR concluded that Govea did not have knowledge of the structure and


       6  See Richard, 901 F.3d at 516 (district court’s factual findings are clearly erroneous
only if they are not “plausible”).
       7 Torres-Magana appears to contend that the government cannot establish the com-
pensation prong because no one profited from the drug delivery. But that makes little sense.
If anything, it implicitly shows that Govea was not compensated.
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                                No. 18-50056
sheer scope of an organization that sent drugs nationwide, including to Chicago
and Columbus. Yet once again, Torres-Magana responds not with cognizable
testimony or affidavits but with mere argument. Thus, we cannot say that the
findings as to Govea’s lack of knowledge are implausible. The court did not
clearly err.

      AFFIRMED.




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