     Case: 11-20137     Document: 00511832625         Page: 1     Date Filed: 04/24/2012




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

                                                                            FILED
                                                                           April 24, 2012
                                     No. 11-20137
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JULIO CESAR GUTIERREZ-JARAMILLO, also known as Flaco,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:92-CR-270-3


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Julio Cesar Gutierrez-Jaramillo (Gutierrez) pleaded
guilty to importation of more than five kilograms of cocaine. His conviction
arose out of an undercover investigation by agents of the Drug Enforcement
Administration (DEA), who met with Gutierrez and others to arrange the
transportation of 500 kilograms of cocaine from Guatemala to the United States.
Gutierrez appeals the 210-month sentence imposed and contends that counsel
rendered ineffective assistance at sentencing.              We review a sentence for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20137    Document: 00511832625      Page: 2   Date Filed: 04/24/2012

                                  No. 11-20137

procedural error and then for substantive reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007); United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Gutierrez first argues that the district court failed to give him credit for
the 16 years that he spent in prison in Peru, or, alternatively, the more than
seven years that he was held in the Peruvian prison despite being paroled in
2002 because the United States delayed his extradition. As a threshold matter,
we do not consider any of the documents that Gutierrez has provided in his
record excerpts that were not before the district court. See United States v.
Flores, 887 F.2d 543, 546 (5th Cir. 1989). With respect to his legal argument
that he was entitled to credit, Gutierrez relies on U.S.S.G. § 5G1.3(b). That
reliance is misplaced because the Peruvian sentence was not undischarged, nor
did it increase the offense level for Gutierrez’s current sentence. See § 5G1.3(b);
United States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996) (addressing prior
similar version of § 5G1.3(b)). Gutierrez alternatively relies on § 5G1.3(c), which
is also inapplicable as it likewise applies to undischarged terms of imprisonment.
      Further, the district court did grant a downward departure of 82 months
below the guidelines range of 292 to 365 months based, in part, on Gutierrez’s
arguments regarding his Peruvian sentence. Gutierrez does not expressly
contend that the extent of that departure was an abuse of discretion, but, in any
case, we see no such abuse in light of the court’s careful consideration of the
parties’ arguments and the appropriate factors under 18 U.S.C. § 3553(a).
      Gutierrez next challenges the application of § 2D1.1(b)(2)(A), which
provides for a two-level enhancement when, inter alia, “an aircraft other than
a regularly scheduled commercial air carrier was used to import or export [a]
controlled substance.” According to Gutierrez, there is no evidence that he knew
or should have known of the type of aircraft used to import the cocaine from
Guatemala into the United States.           Although Gutierrez objected to the
enhancement in the district court, he did so on different grounds. Accordingly,

                                        2
   Case: 11-20137    Document: 00511832625      Page: 3   Date Filed: 04/24/2012

                                  No. 11-20137

we review this issue for plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009); United States v. Cabral-Castillo, 35 F.3d 182,
188-89 (5th Cir. 1994).
      Although we have not previously addressed § 2D1.1(b)(2), we need not
decide the reach of that Guideline today. The plain language of § 2D1.1(b)(2)
contains no express mens rea requirement, which suggests that no scienter is
required. See United States v. Singleton, 946 F.2d 23, 24-25 (5th Cir. 1991). At
least one other circuit has applied the enhancement on similar facts, see United
States v. Iacullo, 140 F. App’x 94, 96-97, 102 (11th Cir. 2005), while two others
have employed a reasonable foreseeability analysis, see United States v.
Bethancourt, 65 F.3d 1074, 1081 (3d Cir. 1995); United States v. Diaz, No. 91-
10095, 1993 WL 22382, at *3-*4 (9th Cir. Feb. 2, 1993). Given this state of the
law, any error cannot have been clear or obvious for purposes of plain error
review. See United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007).
      In addition, the evidence showed that Gutierrez and others arranged to
transport 500 kilograms of cocaine by air from Guatemala to the United States
using a clandestine airstrip in the United States; landing coordinates and radio
frequencies were provided to the pilot for his arrival in Guatemala; Gutierrez
was to take charge of the cocaine on its arrival and arrange for its transportation
to New York; and Gutierrez admitted that the factual basis was true and that
he was present for conversations regarding the shipment.            Thus, even if
knowledge or reasonable foreseeability is required, which we do not hold, the
evidence supports such a finding, particularly on plain error review.
      Gutierrez next challenges the three-level enhancement for his status as
a manager or supervisor under § 3B1.1(b), asserting that his role was limited to
transportation of the drugs in the United States and he had no decision making
authority or control. We review the district court’s determination under the
clearly erroneous standard. See United States v. Rose, 449 F.3d 627, 633 (5th
Cir. 2006). According to the factual basis and the presentence report (PSR),

                                        3
   Case: 11-20137    Document: 00511832625      Page: 4    Date Filed: 04/24/2012

                                  No. 11-20137

Gutierrez attended meetings and took part in at least one telephone
conversation to discuss the importation of 500 kilograms of cocaine by airplane
from Guatemala. The PSR also stated that a co-conspirator told agents that
Gutierrez was to oversee the distribution of the cocaine and collection of money,
and that Gutierrez went to Houston to make arrangements to distribute the
cocaine when it arrived. After the drugs were seized, Gutierrez began working
with the undercover agents and a coconspirator to recoup the loss, negotiating
delivery of a 2,000-pound load of marijuana that Gutierrez planned to sell to
customers in New York from his prior days of distributing drugs there. The
finding that he was a manager or supervisor is plausible in light of the record as
a whole; thus, there was no clear error. See United States v. Palomo, 998 F.2d
253, 257-58 (5th Cir. 1993).
      Finally, Gutierrez argues that his trial counsel rendered ineffective
assistance by failing to obtain and present documentation that would have
supported his claim for credit for the time he spent in a Peruvian prison. Claims
of ineffective assistance of counsel usually “cannot be resolved on direct appeal
when [they have] not been raised before the district court since no opportunity
existed to develop the record on the merits of the allegations.” United States v.
Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and
citation omitted). There has been no development of the record regarding what
investigation Gutierrez’s trial counsel undertook regarding the Peruvian
sentence or what strategic reasons he may have had, nor has there been any
record developed regarding the effect the additional documentation might have
had, which counsels against addressing this claim on direct appeal. See Massaro
v. United States, 538 U.S. 500, 504-06 (2003). We, therefore, decline to reach
Gutierrez’s ineffective assistance claim, without prejudice to his right to raise it
in a motion pursuant to 28 U.S.C. § 2255. See United States v. Bounds, 943 F.2d
541, 544 (5th Cir. 1991).
      AFFIRMED.

                                         4
