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

                                                                   FILED
                                                                December 13, 2007
                                No. 07-30182
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MESACH CARDONA, also known as Ferney, also known as Fernay, also known
as Ferne

                                           Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:04-CR-293-4


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Mesach Cardona appeals his sentence for conspiracy to import, to possess
on board a vessel arriving in the United States, and to possess with intent to
distribute five kilograms or more of cocaine hydrochloride in violation of
21 U.S.C. §§ 841(a)(1), 846, 952(a), 955, and 963, and possession of five
kilograms or more of cocaine hydrochloride on board a vessel arriving in the
United States in violation of § 955. He contends that the district court erred in


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-30182

determining that he had an aggravated role in the offense under U.S.S.G.
§ 3B1.1(b) because he did not manage or supervise the stowaways.
      Cardona did not provide any rebuttal evidence to refute the information
in the presentence report (PSR), nor did he demonstrate that the information
was materially untrue.       Thus, the district court was free to adopt the
information in the PSR as its findings without further inquiry or explanation.
See United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995); United States v.
Davis, 76 F.3d 82, 84 (5th Cir. 1996). Further, the majority of the information
in the PSR was obtained directly from the factual basis which Cardona signed.
At the plea hearing, Cardona confirmed that he understood the factual basis and
that it was factually correct. Although Cardona argues that he did not know the
stowaways, that the stowaways did not know him, that he was never at the
location of the ship or on the ship itself, and that he had no contact with the
stowaways, he admitted that his name was on a piece of paper found on one of
the stowaways and that he and his co-conspirators were headed toward the ship
in order to collect and distribute the cocaine. Moreover, by his own admission,
Cardona organized the importation of 128 and 150 kilograms of cocaine in April
and June of 2004. Therefore, the district court’s determination that Cardona
was a manager or supervisor and that the criminal activity was extensive is
plausible in light of the record as a whole, and Cardona has not shown clear
error. See United States v. Fullwood, 342 F.3d 409, 415 (5th Cir. 2003).
      Cardona also contends that the district court erred when it denied him a
safety valve reduction pursuant to § 5C1.2. Specifically, he argues that the
district court’s determination that he was not eligible for a safety valve reduction
was based on its erroneous conclusion that he was a manager or supervisor
under § 3B1.1(b). Because the district court did not clearly err in determining
that Cardona was a manager or supervisor under § 3B1.1(b), Cardona was
ineligible for a safety valve reduction. See § 5C1.2(a)(4). Therefore, Cardona has



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not shown clear error. See United States v. Miller, 179 F.3d 961, 963-64 (5th Cir.
1999).
      Further, Cardona contends that the district court erred when it denied
him an additional one-level reduction for acceptance of responsibility pursuant
to § 3E1.1(b). Because the Government did not file a motion under § 3E1.1(b),
Cardona did not qualify for the additional one-level reduction. See § 3E1.1(b);
§ 3E1.1, comment. (n.6).
      Finally, Cardona contends that the district court erred when it denied his
request for a downward departure under § 5K2.0 or, alternatively, a downward
variance in light of the sentencing factors set forth in 18 U.S.C. § 3553(a).
Cardona does not argue that the district court denied his request for a downward
departure because it believed erroneously that it had no authority to depart.
Therefore, this court does not have jurisdiction to review Cardona’s argument
that the district court erred when it denied his request for a downward
departure under § 5K2.0, and his appeal is dismissed as to this issue. See
United States v. Martinez, 263 F.3d 436, 440 (5th Cir. 2001).
      To the extent that Cardona invokes the district court’s authority under
§ 3553(a), he effectively argues that the sentence was unreasonable under the
standard announced in United States v. Booker, 543 U.S. 220 (2005). The record
reflects that the district court considered Cardona’s request for a downward
variance, the recommendations of the presentence report, the applicable
guideline range, and the § 3553(a) factors. Because the district court exercised
its discretion to impose a sentence within the properly calculated guideline
range, the sentence was presumptively reasonable, and this court may infer that
the district court considered all the factors for a fair sentence set forth in the
Guidelines. See Rita v. United States, 127 S. Ct. 2456, 2462-70 (2007); United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). Cardona has failed to demonstrate that the
district court clearly erred in exercising its broad sentencing discretion by

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imposing a sentence that failed to account for sentencing factors entitled to
significant weight, gave significant weight to improper or irrelevant factors, or
represented a clear error of judgment in balancing the sentencing factors. See
United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.), cert. denied, 128 S. Ct.
163 (2007).
      Accordingly, the district court’s judgment is AFFIRMED in part and
DISMISSED in part for lack of jurisdiction.




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