     Case: 09-40197     Document: 00511154547          Page: 1    Date Filed: 06/25/2010




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

                                                 FILED
                                                                            June 25, 2010
                                     No. 09-40197
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAUL SEGOVIA, also known as Raul Cegovia, Jr., also known as Negro,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:08-CR-177-1


Before GARWOOD, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
        Raul Segovia, proceeding pro se, appeals his guilty plea conviction and
February 2009 120-month sentence imposed for conspiracy to distribute 100
kilograms or more of marihuana. Segovia argues that the Government breached
his plea agreement, that the district court erred by upwardly departing from the
Sentencing Guidelines based on evidence of his involvement in a drug shipment
that was not included in the charged offense, that the district court erred by
considering a dismissed charge in his criminal history, and that the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40197    Document: 00511154547 Page: 2       Date Filed: 06/25/2010
                                 No. 09-40197

erred by enhancing his offense level based on his leadership role in the
conspiracy.
                    FACTS AND PROCEEDINGS BELOW
      Segovia entered into a written plea agreement with the United States
Attorney in the Southern District of West Virginia on February 20, 2008. Under
this agreement, Segovia agreed to plead guilty to conspiracy, “[f]rom at least
March 31, 2004 to on or about March 8, 2007,” to distribute 100 kilograms or
more of marihuana in violation of 21 U.S.C. § 846. He and the Government both
agreed to waive their rights to appeal the reasonableness of the sentence
imposed, so long as that sentence fell within the range established by the United
States Sentencing Commission’s Guidelines Manual (Sentencing Guidelines or
Guidelines). The agreement stated that this waiver did not “prevent either party
from arguing for a sentence above or below the guideline range at or before the
sentencing hearing, nor does it prevent either party from seeking appellate
review of the District Court’s calculation of the guideline range, if an objection
is properly reserved.” Finally, the plea agreement provided that sentencing was
within the sole discretion of the district court and that the Government reserved
the right to inform the court of all relevant facts and conduct, to present
evidence and argument relevant to the factors in 18 U.S.C. § 3553(a), and to
respond to any arguments made to the district court on Segovia’s behalf.
      Segovia was transferred to Laredo, in the Southern District of Texas,
where he pleaded guilty pursuant to the foregoing agreement. Segovia’s Pre-
Sentence Investigation Report (PSR) recommended that the court hold him
responsible for an extra 1500 kilograms of marihuana as relevant conduct in
addition to the 170 kilograms referenced in the hearing in Laredo before the
Magistrate Judge on this plea of guilty to conspiring to distribute. See United
States Sentencing Commission, Guidelines Manual, §§1B1.3(a)(1)(B), 2D1.1
(Nov. 2007). This additional marihuana had been seized from a tractor-trailer
in January 2007. According to the PSR, the tractor-trailer’s driver had identified

                                        2
   Case: 09-40197   Document: 00511154547 Page: 3        Date Filed: 06/25/2010
                                No. 09-40197

Segovia as the owner of the marihuana, and Segovia’s father had been observed
loading the trailer. Segovia’s father had arrived on the scene driving Segovia’s
wife’s car. The PSR also recommended that Segovia’s sentence be enhanced for
his leadership role in the criminal enterprise and reduced because of his
acceptance of responsibility.
      At sentencing, the district court stated that it had no doubt Segovia was
involved in the January 2007 shipment of 1500 kilograms of marihuana. But it
also stated that it was “highly questionable” that this shipment had any relation
to the conspiracy to which Segovia had pleaded guilty. Accordingly, it declined
to find that the January 2007 shipment was relevant conduct to Segovia’s
conspiracy offense and calculated Segovia’s Sentencing Guidelines range to be
eighty-four to 105 months’ imprisonment (based on an adjusted offense level of
25 and criminal history category IV). However, the district court stated that it
could not ignore the January 2007 shipment completely, so it upwardly departed
from the Guidelines and imposed a sentence of 120 months. The district court
also indicated that this upward departure was warranted because the PSR had
failed to recommend an enhancement for a prior drug conviction on Segovia’s
record. See 21 U.S.C. § 841(b)(1)(B)(vii). Segovia did not object to the upward
departure at sentencing.
                                DISCUSSION
      On appeal, Segovia argues that his sentence should be vacated (1)
because the Government breached the plea agreement, (2) because the
district court violated his Sixth Amendment rights by considering uncharged
conduct in its calculation of the Guidelines and its upward departure, (3)
because it improperly upwardly departed based on the January 2007
shipment, (4) because it improperly increased his criminal history score based
on a driving while intoxicated (DWI) charge that was dismissed, and (5)




                                       3
   Case: 09-40197      Document: 00511154547 Page: 4             Date Filed: 06/25/2010
                                   No. 09-40197

because it enhanced his guideline range for having a leadership role in the
conspiracy.1 We affirm.
I. Plea Agreement
       Because Segovia did not argue that the Government breached the
agreement in the district court, review is for plain error. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009).
       “‘[P]lain-error review’ . . . involves four steps, or prongs. First, there
       must be an error or defect—some sort of ‘[d]eviation from a legal
       rule’—that has not been intentionally relinquished or abandoned,
       i.e., affirmatively waived, by the appellant. . . . Second, the legal
       error must be clear or obvious, rather than subject to reasonable
       dispute. . . . Third, the error must have affected the appellant’s
       substantial rights, which in the ordinary case means he must
       demonstrate that it ‘affected the outcome of the district court
       proceedings.’ . . . Fourth and finally, if the above three prongs are
       satisfied, the court of appeals has the discretion to remedy the
       error—discretion which ought to be exercised only if the error
       ‘“seriously affect[s] the fairness, integrity or public reputation of
       judicial proceedings.”’” Id. (quoting United States v. Olano, 113 S.Ct.
       1770, 1776–79 (1993) (quoting United States v. Atkinson, 56 S.Ct.
       391, 392 (1936))) (emphasis and alteration in original).
In considering whether a plea agreement has been breached, this court considers
whether “the government’s conduct is consistent with the parties’ reasonable
understanding of the agreement.” United States v. Gonzalez, 309 F.3d 882, 886
(5th Cir. 2002) (internal quotation marks and citation omitted).
       The plea agreement provided that the Government could inform the
probation officer and the court about relevant facts and conduct concerning
Segovia. It also provided that either party could argue for a sentence below or
above the guideline range. Based on the fact that the January 2007 shipment
took place during the time period of the charged conspiracy, that Segovia’s


       1
         Although we hold that the district court’s departure from the Guidelines was proper,
we must nevertheless address the Guidelines issues raised by Segovia, since a district court
must properly calculate a defendant’s guideline range before departing from it. See United
States v. Saldana, 427 F.3d 298, 310 & n.45 (5th Cir. 2005).

                                             4
   Case: 09-40197     Document: 00511154547 Page: 5        Date Filed: 06/25/2010
                                  No. 09-40197

family vehicle and his father were involved in the transaction, and that DeLeon’s
statement linked Segovia to the shipment, it was reasonable for the Government
to argue that Segovia’s involvement with the Laredo drugs was relevant conduct.
See U.S.S.G. § 1B1.3(a)(1)(B). It was also reasonable for the Government to
present the district court with relevant facts about Segovia’s role in the criminal
activity.   The Government did not breach the plea agreement by making
arguments it was expressly permitted to make under the terms of the
agreement. Thus, no clear or obvious error occurred regarding the validity of the
plea.
II. Sixth Amendment Arguments
        Segovia’s second assignment of error is that the district court violated his
Sixth Amendment rights and the precedents of Apprendi v. New Jersey, 120
S.Ct. 2348(2000), Blakely v. Washington, 124 S.Ct. 2531(2004), and United
States v. Booker, 125 S.Ct. 738 (2005), by basing his sentence on facts that were
not found beyond a reasonable doubt by a jury. He complained that he was held
accountable for drugs that were not included in the indictment and that he
disputed possessing.
        The authority Segovia cites is inapposite. Booker reaffirmed the holdings
of Apprendi and Blakely and held that the statutory provisions making the
Sentencing Guidelines mandatory were unconstitutional. See Booker, 125 S.Ct.
at 755–57.
        Booker’s holding that the Sentencing Guidelines were advisory, rather
than mandatory, rendered Blakely inapplicable to enhancements made under
the Guidelines. See United States v. Rita, 127 S.Ct. 2456, 2465–67 (2007). In
United States v. Rita, the Supreme Court confirmed that Blakely and Apprendi
do not prevent federal district courts from enhancing sentences under the
Guidelines. Rita, 127 S.Ct. at 2465–66.
        Segovia’s conspiracy conviction carried a statutory maximum of forty
years’ imprisonment. He was only sentenced to ten years. Therefore, Apprendi

                                          5
   Case: 09-40197    Document: 00511154547 Page: 6        Date Filed: 06/25/2010
                                 No. 09-40197

is inapplicable to his case.   In sentencing him, the district court expressly
declined to sentence him according to the recommended range prescribed by the
Sentencing Guidelines. Therefore, neither Blakely nor Booker applies to his
case. The district court’s sentence did not violate Segovia’s Sixth Amendment
rights.
III. Upward Departure for the January 2007 Shipment
      Segovia’s third assignment of error is that the district court upwardly
departed from his Guidelines sentence based in part on its finding that he played
some role in the uncharged January 2007 shipment of 1500 kilograms of
marihuana. Segovia argues that this was error, because he was not charged
with any crime in connection with this shipment. Segovia’s counsel did not
object to the district court’s consideration of the January 2007 shipment at
sentencing. Therefore, our review is for plain error.
      The Sentencing Guidelines are not mandatory. See Booker, 125 S.Ct. at
755–57. Thus, after calculating a defendant’s guideline range properly, a district
court may depart from it based on the factors listed in 18 U.S.C. § 3553(a). See
United States v. Herrera-Garduno, 519 F.3d 526, 529–31 (5th Cir. 2008). One
of the factors listed in Section 3553(a)(1) that may serve as the basis for a
departure is “the history and characteristics of the defendant . . . .” 18 U.S.C.A.
§ 3553(a)(1) (West 2000); Herrera-Garduno, 519 F.3d at 531.
      “A district court can determine a criminal defendant’s sentence based . . .
on facts it believes the government has proven by a preponderance of the
evidence.” United States v. Jackson, 978 F.2d 903, 913 (5th Cir. 1992). The
district court stated that it did not have “the slightest doubt” that Segovia was
involved with the January 2007 shipment. This statement more than satisfies
the preponderance standard.        Furthermore, based on our review of the
information contained in Segovia’s PSR, we cannot say that the district court
clearly erred by making this finding.



                                        6
   Case: 09-40197        Document: 00511154547 Page: 7              Date Filed: 06/25/2010
                                     No. 09-40197

       After calculating Segovia’s guideline range, the district court stated that
it was concerned that a sentence within that range would not reflect his
involvement in the massive January 2007 shipment. In other words, the district
court was concerned that a sentence pursuant to the Sentencing Guidelines
would not accurately reflect the criminal history of Segovia.                      This was a
legitimate ground for departure under 18 U.S.C. § 3553(a).2 Therefore, the
district court did not err by upwardly departing from the guideline range based
on its finding that Segovia had been involved in the January 2007 shipment.
       Post-Booker, “[t]he sentencing judge is entitled to find by a preponderance
of the evidence all the facts relevant to the determination of a Guideline
sentencing range and all facts relevant to the determination of a non-Guidelines
sentence.” United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2008) (citation
omitted). Therefore, the district court did not violate the Sixth Amendment in
finding and considering all facts relevant to the sentencing.
IV. Increased Criminal History Score Based on a DWI Charge
       Segovia argues for the first time on appeal that the district court erred in
assigning him two criminal history points based on a driving while intoxicated
charge that was dismissed on April 9, 1999.                   However, the PSR did not
recommend, and the district court did not assess, criminal history points for this
dismissed offense. Rather, Segovia received two criminal history points for a
DWI offense that occurred on June 27, 1997, to which he pleaded guilty on
August 21, 1998. He was sentenced to sixty days’ imprisonment and had his



       2
         It is irrelevant for the purposes of our 18 U.S.C. § 3553(a) analysis that the district
court concluded that the January 2007 shipment could not constitute relevant conduct under
the Sentencing Guidelines. The district court may consider more conduct under Section
3553(a) than it may consider under the Guidelines. See, e.g., United States v. Vitrano, 495
F.3d 387, 390 (7th Cir. 2007) (“Although provisions in the guidelines . . . allow a district judge
to enhance a defendant’s advisory guideline range only for conduct that is ‘part of the same
course of conduct or common scheme or plan as the offense of conviction,’ once the applicable
range is determined, the judge’s ability to choose which sentence to impose is not so
constrained.”).

                                                7
   Case: 09-40197     Document: 00511154547 Page: 8       Date Filed: 06/25/2010
                                  No. 09-40197

criminal history score increased for that offense, not the April 1999 DWI.
Segovia has not rebutted the finding in the PSR that he pleaded guilty to a DWI
offense on August 21, 1998, nor has he presented any evidence showing that
such conviction was subsequently set aside or the charge dismissed. Thus, there
was no clear or obvious error, and his substantial rights were not affected by the
consideration of the DWI sentence. See United States v. Scher, 601 F.3d 408, 413
(5th Cir. 2010) (“In making factual determinations at sentencing, the district
court is entitled to rely upon the information in the PSR as long as the
information bears some indicia of reliability. . . . The defendant bears the
burden of presenting rebuttal evidence to demonstrate that the information in
the PSR is inaccurate or materially untrue.”). The district court did not plainly
err in calculating Segovia’s criminal history points. See Puckett, 129 S. Ct. at
1429.
V. Leadership Enhancement
        Segovia also challenges for the first time on appeal the district court’s
enhancement of his offense level for having a leadership role in the criminal
activity. The district court found that this enhancement was warranted, and
Segovia has not provided this court with any reason to find that this was plain
error. The PSR stated that he sought to make drug sales to persons outside of
Laredo, Texas, recruited drivers, organized the transportation of the marihuana,
and collected the drug proceeds. Absent rebuttal evidence, the district court was
entitled to rely on the PSR. See Scher, 601 F.3d at 413. Therefore, the district
court did not plainly err in making the two-point enhancement for a leadership
role in the offense. See U.S.S.G. § 3B1.1(c); § 3B1.1, comment. (n.4).
                                 CONCLUSION
        For the foregoing reasons, the judgment of the district court is
                                   AFFIRMED.




                                         8
