     Case: 12-50693       Document: 00512297695         Page: 1     Date Filed: 07/05/2013




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

                                                                            FILED
                                                                            July 5, 2013
                                     No. 12-50693
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HECTOR GALINDO, also known as Silent,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:10-CR-2213-13


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Hector Galindo appeals the life sentence imposed after his guilty plea
conviction for conspiracy to conduct the affairs of an enterprise through a
pattern of racketeering activity. He argues that the appeal waiver was not
knowing and voluntary, that the district court misled him by advising him that
he had a limited right to appeal at sentencing, and that enforcement of the
appeal waiver would result in a miscarriage of justice.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50693

      The record reflects that Galindo understood he had a right to appeal and
that he was giving up that right. He signed the plea agreement containing the
appeal waiver, the district court properly advised him concerning the appeal
waiver at rearraignment, he stated that he understood and agreed to waive his
right to appeal, and he did not ask any questions or express any confusion
concerning the appeal waiver. Therefore, Galindo knowingly and voluntarily
waived the right to appeal his sentence, but he reserved the right to appeal an
upward adjustment for an aggravating role in the offense under U.S.S.G.
§ 3B1.1. See United States v. McKinney, 406 F.3d 744, 746 & n.2 (5th Cir. 2005).
Further, the district court’s statements at sentencing were not misleading as the
district court expressly stated that Galindo’s right to appeal was limited by the
terms of his plea agreement. Galindo has not shown that the enforcement of the
waiver would result in a miscarriage of justice.
      Second, Galindo asserts that the district court erred in finding that he was
a leader or organizer in the offense warranting a four-level upward adjustment
under § 3B1.1(a). He asserts that the Government did not present any evidence
to show that he had decision making authority, that he committed acts of
violence or recruited Barrio Azteca (BA) members, that he was involved in
planning or organizing the conduct of BA members who were not incarcerated,
or that he had a claim to a larger share of the profits.
      We review the district court’s finding that Galindo was a leader or
organizer in the offense warranting a four-level increase under § 3B1.1(a) for
clear error. See United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006). As an
initial matter, we note that Galindo’s advisory guidelines range would not have
changed even if no enhancement for his role in the offense was applied. Even if
the application of the enhancement influenced the district court’s decision to
impose a guidelines sentence of life imprisonment and to reject Galindo’s request
for a below guidelines sentence, the district court’s finding was not clearly
erroneous.

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                                  No. 12-50693

      Because Galindo did not present any evidence to rebut the information in
the presentence report (PSR), the district court was free to adopt it without
further inquiry. See id. The district court’s finding is supported by the factual
basis, which Galindo admitted was true, as well as the information in the PSR
and the evidence presented by the Government at the sentencing hearing. It all
showed that Galindo was a lieutenant in the BA gang and had been a member
since 1994, that he used his cell phone to control the activities of BA members
within and outside of the Texas Department of Criminal Justice prison system,
and that he coordinated the collection and distribution of money from street drug
dealers to the commissary accounts of incarcerated BA members. Because the
district court’s finding as to Galindo’s role in the offense is plausible in view of
the record as a whole, it did not clearly err in imposing the four-level increase
under § 3B1.1(a). See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.
2006).
      AFFIRMED.




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