     Case: 11-40015     Document: 00511908788         Page: 1     Date Filed: 07/03/2012




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

                                                                            FILED
                                                                            July 3, 2012
                                     No. 11-40015
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FRANCISCO MEZA-ROJAS, also known as Chacho, also known as El Ocho,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:05-CR-926-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Francisco Meza-Rojas pleaded guilty to conspiracy to possess, with intent
to distribute, 169 kilograms of cocaine and 4,736 kilograms of marijuana. The
district court sentenced him to 324-months’ imprisonment and five-years’
supervised release. Meza, proceeding pro se, challenges on numerous grounds
both his conviction and sentence.
        Meza contends the district court erred when accepting his guilty plea by:
failing to admonish him regarding the nature of the charge against him; taking

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40015

multiple pleas in the same proceeding; failing to advise him fully on the
consequences of supervised release; and wrongly advising him that he was
subject to a term of supervised relief for life. No objection having been made in
district court to any of these claimed errors, review is only for plain error. United
States v. Vonn, 535 U.S. 55, 59 (2002). To show reversible plain error, Meza
must show a forfeited, plain (clear or obvious) error that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, our court has the discretion to correct the plain error, but only if it
seriously affects the fairness, integrity, or public reputation of the judicial
proceeding. Id. Meza has not shown that the district court committed any
errors in accepting his guilty plea. And even if he had, Meza has not made the
requisite showing, under plain-error review, that it was reasonably probable
that, but for any error, he would not have pleaded guilty. United States v.
Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006).
      Meza also maintains the Government breached the plea agreement by:
introducing information that raised his base offense level above 32; not
recommending a sentence reduction for his cooperation; and not allowing him
additional opportunities to cooperate. Because Meza did not raise this breach-of-
plea-agreement issue in district court, review is again only for plain error. E.g.,
United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). Meza has the burden
of demonstrating, by a preponderance of the evidence, the underlying facts that
establish the breach. E.g., United States v. Roberts, 624 F.3d 241, 246 (5th Cir.
2010). Meza cannot meet this burden, however, because he has not shown that
the Government made any of the promises he alleges were breached.
      Meza claims the district court erred in accepting his guilty plea because
there was an insufficient factual basis to establish that he conspired to possess
the controlled substances with the intent to distribute them. The elements of
possession with intent to distribute a controlled substance are: (1) knowledge;
(2) possession of a controlled substance; and (3) intent to distribute. E.g., United

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States v. Ortega Reyna, 148 F.3d 540, 543-44 (5th Cir. 1998). Given that the
controlled substances were the equivalent of thousands of pounds of marijuana,
intent to distribute may be inferred. E.g., United States v. Guanespen-Portillo,
514 F.3d 393, 396-97 (5th Cir. 2008).
      Meza contends, on several grounds, that his sentence of 324-months’
imprisonment was procedurally flawed and substantively unreasonable.
Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), the first inquiry is
whether the district court committed any procedural errors. If the district
court’s decision is procedurally sound, next considered, “under an abuse-of-
discretion standard”, is “the substantive reasonableness of the sentence
imposed”, in the light of “the totality of the circumstances”. Id.
      Meza asserts the district court erred in holding him responsible for an
equivalent amount of 38,536 kilograms of marijuana. Along that line, Meza
contends the district court erred by not resolving his objections to the
presentence investigation report (PSR) and by adopting the facts contained in
it. The district court’s findings of fact at sentencing are reviewed under the
clearly-erroneous standard. United States v. Lyckman, 235 F.3d 234, 237 (5th
Cir. 2000). It may rely on a PSR when making factual determinations and “may
adopt the facts contained in the PSR without further inquiry if the facts have an
adequate evidentiary basis and the defendant does not present rebuttal
evidence”. United States v. Cooper, 274 F.3d 230, 239 (5th Cir. 2001). “The
defendant has the burden of showing that the information relied on by the
district court in the PSR is materially unreliable.” United States v. Ford, 558
F.3d 371, 377 (5th Cir. 2009) (internal quotation marks omitted). Meza has not
shown that this factual finding failed to resolve the disputed issues or was
clearly erroneous.
      Meza maintains the district court erred in applying the four-level
enhancement for his leadership role in the offense. Review is for clear error.
Lyckman, 235 F.3d at 237. Under Sentencing Guideline § 3B1.1(a), defendant’s

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offense level should be increased by four levels if he “was an organizer or leader
of a criminal activity that involved five or more participants or was otherwise
extensive”.   Meza has not shown that the district court clearly erred in
determining Meza satisfied these requirements for being a leader of the
extensive criminal activity. See United States v. Curtis, 635 F.3d 704, 720 (5th
Cir.), cert. denied, 132 S. Ct. 191 (2011).
      Meza contends the district court erred in calculating his total offense level
when it subtracted the three-level, acceptance-of-responsibility reduction from
an adjusted total offense level of 44, rather than 43, the highest total offense
level allowed under the advisory Sentencing Guidelines. Meza did not raise this
issue in district court. In United States v. Arreola-Albarran, 210 F. App’x 441,
443 (5th Cir. 2006), our court found that plain-error review was appropriate for
this issue when not raised in district court. Our court then found that the
district court’s method of calculation was not plain error. Id.; see also United
States v. Wood, 48 F.3d 530, **6-7 (5th Cir. 8 Feb. 1995).
      Meza claims his sentence of 324-months’ imprisonment was substantively
unreasonable because it failed to account adequately for disparity in the
sentences given his codefendants. When, as here, the district court imposes a
sentence within a properly calculated guidelines range, the sentence is entitled
to a presumption of reasonableness. E.g., United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006). The district court heard and specifically considered Meza’s
sentencing-disparity contention, but concluded that a sentence within the
recommended Guidelines range was appropriate. Meza has not shown that the
district court failed to give proper weight to his contention. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Lastly, and notwithstanding his specific agreement to a two-level,
obstruction-of-justice increase to his offense level, Meza asserts that the district
court erred by increasing his punishment for such conduct. He relies on an
extradition treaty between the United States and Mexico. (The obstruction-of

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-justice enhancement stemmed from Meza’s escape from custody, after
indictment, and subsequent extensive time as a fugitive in Mexico.) Meza raised
this issue before the district court, which rejected it, noting that Meza was not
being prosecuted for escaping from custody, and that it could consider such
evidence as a sentencing factor for the conspiracy offense. Review is de novo.
E.g., United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Meza’s contention lacks merit. “[The] use of evidence of related criminal conduct
to enhance a defendant’s sentence for a separate crime within the authorized
statutory limits does not constitute punishment for that conduct”. Witte v.
United States, 515 U.S. 389, 399 (1995). See also United States v. Angleton, 201
F. App’x 238, 243-44 (5th Cir. 2006) (applying Witte to reject challenge similar
to Meza’s); United States v. Garrido-Santana, 360 F.3d 565, 576-79 (6th Cir.
2004) (same); United States v. Lazarevich, 147 F.3d 1061, 1063-65 (9th Cir. 1998)
(same).
      AFFIRMED.




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