     Case: 13-40617      Document: 00512850813         Page: 1    Date Filed: 11/26/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT



                                      No. 13-40617
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 26, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

LUIS PEREZ-BAROCELA,

                                                 Defendant-Appellant



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:12-CR-757-2


Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Luis Perez-Barocela appeals his conviction for conspiring to possess with
intent to distribute more than 1,000 kilograms of marijuana.                           He also
challenges the calculation of his sentencing range under the Guidelines and
the district court’s dismissal of his motion to continue sentencing.                            We
AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                FACTS AND PROCEDURAL BACKGROUND
      Luis Perez-Barocela, Raul Peraza-Trejo, and Oscar Quijano were
charged with conspiring to possess with intent to distribute more than 1,000
kilograms of marijuana. Peraza-Trejo and Quijano pled guilty, while Perez-
Barocela proceeded to trial before a jury. The government’s witnesses at trial
included Quijano; co-conspirators Jose Antonio Benitez, Ernesto Cabrera-
Enriquez, and Noe Galindo, Jr., all of whom pled guilty to various drug
offenses; Homeland Security Investigations (“HSI”) agent Charles Lehmann;
and Drug Enforcement Administration (“DEA”) agent David Bishop.
      Benitez, Cabrera-Enriquez, and Galindo all testified that they were
commercial truck drivers and that Perez-Barocela had recruited them to
transport loads of marijuana through the Falfurrias checkpoint between
October 2011 and February 2012 in return for payments ranging from $30,000
to $50,000. Each co-conspirator further testified that he was arrested at the
checkpoint when agents discovered in his truck between 1,200 and 2,600
pounds of marijuana belonging to Perez-Barocela and Peraza-Trejo. According
to the testimony, Perez-Barocela and Peraza-Trejo obtained the marijuana,
sometimes led the loading and unloading process, and accompanied the trucks
through the border in a white GMC, blue Nissan Altima, or blue Jeep Liberty.
Cabrera-Enriquez and Galindo both identified Peraza-Trejo as the leader of
the operation. The co-conspirators also provided agents with Perez-Barocela’s
phone number, and Benitez and Galindo identified Perez-Barocela and Peraza-
Trejo in photo arrays.
      Quijano, also a truck driver, testified that he did not transport marijuana
across the border but instead loaned his truck to Perez-Barocela and Peraza-
Trejo for this purpose in return for $30,000. He corroborated much of Benitez’s


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and Galindo’s testimony, provided agents with Perez-Barocela’s phone
number, and identified Perez-Barocela and Peraza-Trejo in photo arrays.
      Agent Lehmann testified that he was working at the Falfurrias
checkpoint when Cabrera-Enriquez was arrested. He participated in Cabrera-
Enriquez’s interview, developed photo arrays to identify the members of the
conspiracy, and tracked down Perez-Barocela’s phone based on the phone
number provided by Cabrera-Enriquez.
      Agent Bishop, the case agent, linked the arrests of Benitez, Cabrera-
Enriquez, and Galindo. He testified that Benitez, Quijano, and Perez-Barocela
worked together as truck drivers for Eagle Systems. He also testified that a
white SUV was registered to Perez-Barocela and that Peraza-Trejo rented a
blue Nissan Altima from September 2011 to December 2011. Surveillance
photos taken at the Falfurrias checkpoint confirmed that those vehicles crossed
through the checkpoint in temporal proximity to the trucks transporting the
marijuana. Agent Bishop also linked the co-conspirators’ phone numbers,
testifying that there were 63 calls between Perez-Barocela and Benitez, 160
calls between Perez-Barocela and Cabrera-Enriquez, six calls between Perez-
Barocela and Galindo, and 108 calls between Perez-Barocela and Quijano.
      Perez-Barocela and the government stipulated that the trafficked
substance was marijuana and that its net weight exceeded 1,000 kilograms.
The government rested, and Perez-Barocela did not call any witnesses. After
Perez-Barocela unsuccessfully moved for a judgment of acquittal, the jury
returned a guilty verdict.
      The pre-sentence report (“PSR”) determined that Perez-Barocela’s total
offense level was 39, which reflected a base offense level of 34, a two-point
enhancement for threatening a witness, and a three-point enhancement for
Perez-Barocela’s role as a manager or supervisor of criminal activity that

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involved five or more participants or was otherwise extensive.        The PSR
indicated that Perez-Barocela had accrued three criminal history points due to
a 2003 New Jersey conspiracy conviction, placing him in criminal history
category II. Perez-Barocela’s Sentencing Guidelines range was 292 to 365
months imprisonment.       Perez-Barocela filed several objections, and in
response, the probation officer filed an amended PSR.
      When Perez-Barocela appeared for sentencing, he asked for a
continuance so that he could continue to debrief with the government. The
government responded that Perez-Barocela had already debriefed and that an
additional meeting was unlikely to yield useful information.         The court
accepted the government’s argument and proceeded with the sentencing. After
overruling Perez-Barocela’s objections to the PSR and rejecting his request for
a downward departure or variance, the district court sentenced Perez-Barocela
to 292 months in prison and five years of probation. Perez-Barocela timely
appealed to this court.
                                DISCUSSION
I. Sufficiency of Evidence Supporting Verdict
      Perez-Barocela argues that the district court erred in denying his motion
for a judgment of acquittal. We review the denial of a motion for a judgment
of acquittal de novo. United States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011).
The jury’s verdict will be affirmed if “any reasonable trier of fact could have
found that the evidence established guilt beyond a reasonable doubt.” United
States v. Ochoa, 667 F.3d 643, 647 (5th Cir. 2012) (citation omitted). “[W]e do
not evaluate the weight of the evidence or the credibility of the witnesses, but
view the evidence in the light most favorable to the verdict, drawing all
reasonable inferences to support the verdict.” Girod, 646 F.3d at 313 (citation
omitted).

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      To establish conspiracy, the government must demonstrate that: (1) an
agreement existed between two or more persons to perform an illegal activity,
(2) the defendant knew of the agreement, and (3) the defendant voluntarily
participated in the activity. See Ochoa, 667 F.3d at 648. Perez-Barocela argues
that both the character of the evidence (circumstantial) and the inferences that
could reasonably be drawn from it were insufficient to support his conviction
for conspiring to possess marijuana with the intent to distribute it.
      First, Perez-Barocela contends that the only evidence linking him to the
conspiracy is circumstantial testimony from co-conspirators. Jurors, though,
may “infer any element of [conspiracy] from circumstantial evidence.” United
States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989). More specifically, “[a]s
long as it is not factually insubstantial or incredible, the uncorroborated
testimony of a co-conspirator, even one who has chosen to cooperate with the
government    in   exchange    for   non-prosecution   or    leniency,   may    be
constitutionally sufficient evidence to convict.” United States v. Westbrook, 119
F.3d 1176, 1190 (5th Cir. 1997) (citation omitted).           Consequently, the
government was permitted to rely on the testimony of co-conspirators to link
Perez-Barocela to the conspiracy.
      Next, Perez-Barocela argues that the government’s evidence proved, at
most, that his legitimate work in the trucking industry resulted in his
association with criminals. There is little basis for this claim. Testimony from
Perez-Barocela’s co-conspirators and Agents Lehmann and Bishop detailed
Perez-Barocela’s recruitment of co-conspirators to transport marijuana,
accompaniment of shipments across the border, arrangement of transportation
inside the United States, phone conversations with co-conspirators, and
payment of co-conspirators. Viewed in the light most favorable to the verdict,
this evidence was sufficient for a rational trier of fact to find beyond a

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reasonable doubt that Perez-Barocela conspired to possess marijuana with the
intent to distribute it.


II. Assessment of Three Criminal History Points for Prior Conviction
       Perez-Barocela argues that the district court erred when it increased his
offense level by three points for his New Jersey conspiracy conviction. We
review a district court’s interpretation and application of the Sentencing
Guidelines de novo. United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th
Cir. 2012). The Guidelines instruct district courts to assess three criminal
history points “for each prior sentence of imprisonment exceeding one year and
one month.” U.S.S.G. § 4A1.1(a). If such a sentence is “totally stayed or
suspended,” however, the government should assess only one criminal history
point. §§ 4A1.1(c), 4A1.2(a)(3).
       Perez-Barocela, while conceding that his sentence for the New Jersey
conviction exceeded one year and one month, notes that his sentence was
stayed pending appeal and argues that the government was not permitted to
rely on Westlaw’s reproduction of the opinion confirming his sentence to
demonstrate that it was no longer stayed or suspended. 1                  He claims the
government was instead required to introduce the judicial record verifying his
affirmed sentence. According to Perez-Barocela, this requirement follows from
the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005).
In Shepard, the Court held that the government may not rely on police reports
and complaint applications to prove that a defendant’s conviction satisfies the


       1 Perez-Barocela also argued in his objections to the PSR that, regardless of whether
his sentence was affirmed, the enhancement was unwarranted because he never actually
served his sentence. Perez-Barocela has not briefed this issue on appeal and we therefore
decline to consider it. See Brinkman v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
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elements of generic burglary, but instead must rely on the charging document,
the plea agreement or transcript related to the plea, or a comparable judicial
record. Id. at 16, 26.
      Shepard “does not apply when determining whether the government has
satisfied its burden of proof as to the existence of a prior conviction.” United
States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir. 2007). For proof of a
conviction we consider whether the documents relied upon “have sufficient
indicia of reliability to support their probable accuracy . . . .”       Id.   The
government may rely on uncertified case summaries so long as they are
reliable and the defendant fails to offer contradictory evidence. Id. Here, the
district court appropriately relied on Westlaw’s reproduction of the opinion
affirming Perez-Barocela’s sentence, because it is a reliable reproduction of a
judicial record and Perez-Barocela has offered no evidence undermining its
reliability. Accordingly, the district court did not err in enhancing Perez-
Barocela’s offense level by three points.


III. Three-Point Increase in Offense-Level for Managerial Role in Conspiracy
      Perez-Barocela argues that the district court erred when it increased his
offense level by three points for playing a managerial role in the conspiracy.
He alleges that he “was a mere pawn in Raul Peraza-Trejo’s drug trafficking
organization . . . .” We review a district court’s factual findings for sentencing
purposes for clear error. Cantu-Ramirez, 669 F.3d at 628.         “District courts
enjoy wide discretion in determining which evidence to consider and to credit
for sentencing purposes.” Id. (citation omitted). Accordingly, clear error will
not be found so long as a factual finding “is plausible in light of the record read
as a whole.” United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir. 1994)
(citation omitted).      The defendant bears the burden of proving that the

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evidence relied upon by the district court is “materially untrue” and therefore
implausible. Id. at 943.
      Under the Sentencing Guidelines, the offense level of a defendant may
be increased by three points if he played a managerial or supervisory role in a
criminal activity but not a leadership or organizational role. § 3B1.1(b). The
commentary to the Guidelines instructs courts to consider the following factors
when distinguishing managers and supervisors from leaders and organizers:
(1) “the exercise of decision making authority,” (2) “the nature of participation
in the commission of the offense,” (3) “the recruitment of accomplices,” (4) “the
claimed right to a larger share of the fruits of the crime,” (5) “the degree of
participation in planning or organizing the offense,” (6) “the nature and scope
of the illegal activity,” and (7) “the degree of control and authority exercised
over others.” § 3B1.1 cmt. n.4. We use these same factors to determine
whether a district court erred in finding that a defendant was a manager or
supervisor. See United States v. Reagan, 725 F.3d 471, 494 (5th Cir. 2013).
      Perez-Barocela contends that his recruitment of others to transport
marijuana does not give rise to the conclusion that he was a manager in the
conspiracy to transport marijuana. He further contends that there was no
evidence that he negotiated the amounts or prices of the marijuana or that he
received more money than his co-conspirators. These specific gaps in the
evidence, however, do not undermine what the evidence as a whole plausibly
establishes.
      The      detailed,    consistent   testimony    from     Perez-Barocela’s    co-
conspirators, as corroborated and substantiated by Agents Lehmann and
Bishop, demonstrated that Perez-Barocela: (1) recruited Benitez, Cabrera-
Enriquez, and Galindo to drive trucks through the Falfurrias checkpoint
carrying marijuana hidden amongst legitimate cargo in exchange for cash

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payments; (2) escorted the trucks across the checkpoint; (3) arranged for the
marijuana to be offloaded onto trailers and hidden amongst legitimate cargo;
and (4) made over three hundred phone calls to Benitez, Cabrera-Enriquez,
Galindo, and Quijano to coordinate these operations.
      Upon this evidence, the district court could plausibly conclude not only
that Perez-Barocela recruited accomplices, as he claims, but that he exercised
decision-making authority, participated heavily in the transportation of the
marijuana, planned and organized the transportation, and exercised control
over his co-conspirators. In other words, the court could plausibly find that no
fewer than six out of the seven factors mentioned in the Guidelines mitigated
in favor of finding that Perez-Barocela played a managerial or supervisory role
in the criminal activity. Accordingly, the district court did not clearly err in
assessing the three-point enhancement.


IV. Two-Point Increase in Offense Level for Witness Intimidation
      Perez-Barocela contends that the district court erred when it increased
his offense level by two points for threatening a witness. Our review is for
clear error. Cantu-Ramirez, 669 F.3d at 628. We also consider that a district
court “can adopt facts contained in a PSR without inquiry if those facts had an
adequate evidentiary basis and the defendant does not present rebuttal
evidence.” Puig-Infante, 19 F.3d at 943 (citation omitted).
      Under the Sentencing Guidelines, the offense level of a defendant who
played an aggravating role in a criminal activity may be increased by two
points for witness intimidation or obstruction of justice. § 2D1.1(b)(15)(D).
Perez-Barocela contends that the testimony and information contained in the
PSR were insufficient to demonstrate that he threatened the witness Quijano.
He did not, though, provide rebuttal evidence in support of his claim and

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therefore cannot meet his burden of demonstrating that the evidence relied
upon was materially untrue and implausible.
      Furthermore, there is no basis upon which to conclude that the district
court exercised its discretion improperly. Quijano testified that, during March
2013, while he and Perez-Barocela were incarcerated in the Karnes City
Corrections Center pending trial, Perez-Barocela threatened to harm him and
his family if he cooperated with the government. He further testified that he
called his wife and asked her to inform his lawyer of these threats, and that he
was transferred to a different facility three weeks later. The PSR notes that
recorded   phone    conversations    between    Perez-Barocela    and   Quijano
corroborate Quijano’s testimony and that Perez-Barocela had attempted to
persuade Quijano to sign paperwork indicating that he was not involved in the
conspiracy.   In addition, the government offered to provide, if necessary,
testimony from a DEA agent and recorded phone conversations corroborating
the then-existing evidence.    Taken together, this evidence could certainly
support a finding that Perez-Barocela threatened Quijano. Accordingly, the
district court did not clearly err in levying the two-point enhancement.


V. Rejection of Motion to Continue Sentencing
      Perez-Barocela advances two related arguments regarding the district
court’s rejection of his motion to continue sentencing. First, he claims that the
court violated the Federal Rules of Criminal Procedure by failing to explicitly
rule on his motion or find that such a ruling was unnecessary. Second, he
claims that the court plainly erred in failing to grant his motion.
   a. Failure to Rule Explicitly on Motion
      The district court’s compliance with the Federal Rules of Criminal
Procedure is a question of law subject to de novo review. See United States v.

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Medina, 161 F.3d 867, 874 (5th Cir. 1998). Under Rule 32(i)(3)(B), a court
“must – for any disputed portion of the presentence report or other
controverted matter – rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because
the court will not consider the matter in sentencing . . . .” FED. R. CRIM. P.
32(i)(3)(B). Perez-Barocela claims that the district court failed to rule on his
motion for continuance.
      We start by noting that a motion for continuance, even if its grounds are
that sentencing should be delayed, is not clearly encompassed within the just-
quoted subpart of Rule 32. Further, both parties spoke at length regarding the
motion for continuance, and the judge posed numerous questions. The court
then held there was not “any reason to pursue” additional debriefing,
confirmed that the government did not wish to do so, and determined to “go
ahead with sentencing.” These comments clearly though implicitly denied
Perez-Barocela’s motion. Moreover, the court adopted the PSR and imposed a
sentence within the range it prescribed, actions which were entirely
inconsistent with Perez-Barocela’s motion for continuance. Denials of motions
that are implicit in the rulings of a district judge are valid. United States v.
Aggarwal, 17 F.3d 737, 745 (5th Cir. 1994).
      Regardless of the general acceptability of implicit rulings, Perez-
Barocela construes Rule 32(i)(3)(B) as requiring a court to state explicitly its
denial of a motion or determination that a ruling is unnecessary. As noted,
Rule 32(i)(3)(B) does not, by its terms, clearly apply to a motion for continuance
during sentencing. It also does not require an explicit statement from the
court. Indeed, we have suggested that an implicit rejection may suffice. For
example, we have held that the imposition of a Guidelines sentence implicitly


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denied a request for a downward departure. See United States v. Hernandez,
457 F.3d 416, 424 (5th Cir. 2006).
      The district court’s comments, adoption of the PSR, and imposition of a
sentence falling within the Guidelines range prescribed by the PSR constituted
an implicit and sufficient of the motion for continuance.
   b. Failure to Grant Motion
      If a claim of error is raised for the first time on appeal, review is for plain
error. Puckett v. United States, 556 U.S. 129, 135 (2009). To demonstrate plain
error, an appellant must prove that an error: (1) occurred; (2) was plain; (3)
affects substantial rights; and (4) “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (quoting United States v. Olano,
507 U.S. 725, 736 (1993)).
      Perez-Barocela argues that the district court plainly erred in rejecting
his motion to continue his sentencing. He asserts that the court should have
granted the motion because, had he debriefed with the government, the
government might have filed a U.S.S.G. § 5K1.1 motion, which, if granted,
would have decreased his sentencing range.
      Rule 32(i)(3)(B) does not, by its terms, require a judge to grant a motion
for a continuance when there is any possibility that doing so might cause the
government to file a motion that, if granted, would reduce the defendant’s
sentence. In fact, since this possibility always exists, such a construction would
render every denied motion for a continuance plainly erroneous. Perhaps for
this reason, Perez-Barocela can cite no case supporting his interpretation.
Accordingly, there are no grounds upon which to find that the district court’s
denial of Perez-Barocela’s motion was error, let alone plain error.
      Additionally, under the third prong of plain error analysis, an error
“must have affected the outcome of the district court proceedings.” Olano, 507

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U.S. at 734. Perez-Barocela, however, cannot demonstrate that he would have
received a lower sentence if the court had granted his motion, because he has
put forth no evidence suggesting that the government would have filed a
Section 5K1.1 motion after debriefing. In fact, the existing evidence suggests
the opposite.    After conducting one debriefing with Perez-Barocela and
determining that he had not been truthful, accepted responsibility for his
actions, or provided useful information, the government determined that a
second debriefing would be useless. The government did not file a Section
5K1.1 motion after the first debriefing, and the evidence suggests that it would
not have done so after a second debriefing.
      Because we determine that no plain error affecting substantial rights
occurred, the final factor of the plain-error analysis is inapplicable.
      The district court did not plainly err by denying Perez-Barocela’s motion
for a continuance.
      AFFIRMED.




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