     Case: 12-50166       Document: 00512376686         Page: 1     Date Filed: 09/17/2013




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

                                                                            FILED
                                                                        September 17, 2013
                                     No. 12-50166
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERTO ANGEL CARDONA, also known as Little Angelito,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:10-CR-2213-15


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Roberto Angel Cardona appeals the life sentence imposed following his
guilty plea conviction for conspiracy to conduct the affairs of an enterprise,
namely, the Barrio Azteca organization, through a pattern of racketeering
activity. Cardona seeks resentencing based on three alleged procedural errors.
       After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for procedural error and substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 50-51 (2007). The district court’s

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50166

interpretation or application of the Guidelines is reviewed de novo, and its
factual findings are reviewed for clear error. Id. at 472. “There is no clear error
if the district court’s finding is plausible in light of the record as a whole.”
United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010) (quotation marks and
citation omitted).
      For the first time on appeal, Cardona contends that the district court
either mistakenly believed that the offense of conviction carried a mandatory
minimum sentence or treated the United States Sentencing Guidelines as
mandatory. We review this claim for plain error only. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
      The record, when viewed in its entirety, does not support Cardona’s
allegation that the district court believed the offense carried a mandatory
minimum sentence or that the court was unaware of the various sentencing
alternatives under the advisory Guidelines. At rearraignment, the district court
stated only the maximum term of imprisonment (life); the district court did not
admonish Cardona regarding any minimum term.                The district court also
confirmed that Cardona understood the advisory nature of the Guidelines and
how they would be applied in his case. At sentencing, which proceeded for over
three hours, defense counsel clarified that a life sentence was the statutory
maximum term. Additionally, the district court heard testimony from three
witnesses, as well as argument and objections from the defense, regarding the
Guidelines calculations and Cardona’s request for a sentence below the
recommended term of life imprisonment. Finally, the district court’s sentencing
colloquy demonstrates the court was aware of its discretion. Because the factual
allegations underlying the instant challenge are not supported by the record,
Cardona has not shown error, plain or otherwise.
      Next, Cardona claims that the district court erroneously applied the
sentencing enhancements based on testimony that was not credible and that was
internally inconsistent. In support, he generally attacks the testimony of the

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                                  No. 12-50166

three Government witnesses on the issues of leadership within the Barrio Azteca
organization, acts of violence, and a kidnaping of an unknown man in 2007.
These attacks apparently call into question the district court’s application of the
four-level enhancements pursuant to U.S.S.G. § 3B1.1(a) based on Cardona’s
aggravating role in the offense, the two-level use-of-violence enhancement
pursuant to § 2D1.1(b)(2), and the two-level enhancement pursuant to
§ 2B3.2(b)(3)(B) based on Cardona’s participation in the kidnaping. Any claims
of error regarding the other enhancements applied by the district court are
waived by virtue of inadequate briefing. See United States v. Reagan, 596 F.3d
251, 254 (5th Cir. 2010).
      Cardona’s challenge to the application of the above-mentioned
enhancements finds no convincing support in the record. In support of the
aggravating role enhancements, the Government elicited testimony that, by
2007 or 2008, Cardona had attained rank within the Barrio Azteca organization
and thus was considered to be a “major player.” With respect to the use-of-
violence enhancement, one of the Government’s witnesses testified that
(1) Cardona had him beaten up, or “violated,” for not standing up to another
Barrio Azteca member; (2) he saw Cardona punch another man for giving
Cardona “the runaround to pay quota;” and (3) while they were incarcerated
together in 2009, Cardona told him that he was going to have another man
assaulted because of a money debt. Additionally, with respect to the kidnaping
enhancement, the Government elicited testimony from one witness directly
implicating Cardona in the planning of the kidnaping, in the summer of 2007,
of a man who had been accused of sexually assaulting the daughter of a Barrio
Azteca member.
      Because the evidence relied on by the district court had a sufficient indicia
of reliability, and because the district court’s factual findings regarding
Cardona’s role, his use of violence, and the kidnaping are plausible in light of the
record as a whole, Cardona has not shown that the district court erred in

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                                  No. 12-50166

overruling his objection to the sentencing enhancements. See United States v.
Cantu-Ramirez, 669 F.3d 619, 629 (5th Cir.), cert. denied, 133 S. Ct. 247 (2012);
Harris, 597 F.3d at 250. Further, it was within the province of the district court
to determine the credibility of the witness’s testimony. See United States v.
Ocana, 204 F.3d 585, 593 (5th Cir. 2000). Such “determinations in sentencing
hearings are peculiarly within the province of the trier-of-fact.” United States v.
Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (citation omitted).
      Cardona’s third assignment of error is that, in applying the sentencing
enhancements, the district court violated his Sixth Amendment and due process
rights and the precedents of Apprendi v. New Jersey, 530 U.S. 466 (2000),
Blakely v. Washington, 542 U.S. 296 (2004), and Booker, 543 U.S. 220, by
considering conduct neither found by a jury nor admitted by Cardona. The
authority Cardona cites is inapposite. 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. Whitfield, 590
F.3d 325, 367 (5th Cir. 2009) (internal quotations and citation omitted). Thus,
the district court did not violate Cardona’s Sixth Amendment or due process
rights in finding and considering all facts relevant to the sentencing.
      Accordingly, we affirm the judgment of the district court below, but we
also remand to the district court for the limited purpose of correcting the
statement of reasons accompanying the judgment of conviction to remove the
inadvertent check mark indicating that a mandatory minimum sentence was
imposed in this case. See FED. R. CRIM. P. 36; United States v. Powell, 354 F.3d
362, 371-72 (5th Cir. 2003).
      AFFIRMED and REMANDED with instruction.




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