     Case: 17-41000      Document: 00514610894        Page: 1     Date Filed: 08/22/2018




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

                                   No. 17-41000                                 FILED
                                 Summary Calendar                         August 22, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

BRUCE LEE CISNEROS, Also Known as Monstro, Also Known as O.G.,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 2:16-CR-706-14




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

      Bruce Cisneros and thirteen co-defendants were charged with conspiracy



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 17-41000

to engage in racketeering activity, i.e., drug trafficking, on behalf of the Texas
Mexican Mafia (“TMM”), 1 in violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(d). Cisneros was also charged
individually with possession with intent to distribute a controlled substance in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and with being a felon in posses-
sion of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He pleaded
guilty to all three charges.

       Cisneros contends that the district court abused its discretion by denying
his request for a minimal or minor role adjustment under U.S.S.G. § 3B1.2. He
also challenges the substantive reasonableness of his below-guideline sentence
of 102 months.

       Whether Cisneros was a minimal or minor participant under § 3B1.2 is
a factual determination that this court reviews for clear error. See United
States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). A factual find-
ing is not clearly erroneous if plausible in light of the record as a whole. Id.
The defendant has the burden of proving by a preponderance of the evidence
that a § 3B1.2 adjustment is warranted. Id.

       Cisneros distributed cocaine and heroin for David Maseda, Jr., a TMM
“lieutenant” and a ringleader of the RICO conspiracy. Cisneros was in regular
contact with Maseda, and cell phone records revealed that his phone number
was intercepted on Masada’s cell phone twenty-one times in just one week. A
search of Cisneros’s cell phone also revealed text messages with other TMM
members about illegal activities of the enterprise and about collection of “the
dime,” a 10% tax levied by the TMM on the profits from any TMM member’s


       1 The TMM originated in the Texas prison system in the 1980s as a cultural heritage
group. It has evolved into a criminal enterprise that deals in drugs, assassination contracts,
prostitution, robbery, and firearms.


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                                    No. 17-41000

criminal ventures.

      Cisneros also claimed ownership of at least some of the drugs in the con-
spiracy. As the government maintains, it is at least plausible to infer that
Cisneros stood to benefit financially from the TMM’s criminal activities, given
his admitted ownership of the drugs. See § 3B1.2, comment. n.3(C)(v). Fur-
thermore, the fact that Cisneros pleaded guilty to three charges, as distin-
guished from a single RICO conspiracy charge, weighs against any notion that
he was substantially less culpable than the average participant. See § 3B1.2,
comment. (n.3(A)). As the district court observed, many of the defendants,
some of whom were low-ranking TMM prospective members like Cisneros,
faced only a single RICO conspiracy charge. Based on these facts, the deter-
mination that Cisneros was not entitled to a § 3B1.2 reduction was plausible
in light of the record as a whole and was not clearly erroneous. See Torres-
Hernandez, 843 F.3d at 207.

      Cisneros posits that the sentence is substantively unreasonable. The
substantive reasonableness of a sentence is generally reviewed for abuse of
discretion, United States v. Neal, 578 F.3d 270, 273 (5th Cir. 2009), but because
Cisneros failed to object on this basis in district court, this court’s review is for
plain error only, see United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007);
see also Puckett v. United States, 556 U.S. 129, 135 (2009).

      According to Cisneros, the district court “grant[ed] a variance to make
[him] subject to guideline sentencing under criminal history category II.” He
suggests that the sentence is substantively unreasonable because it is above
the resulting guidelines range of 78 to 97 months that applies to criminal
history category II. 2

      2 This guidelines calculation assumes the applicability of a minor-role adjustment,
and as discussed above, the district court correctly refused such an adjustment.


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                                 No. 17-41000

      The district court did not, as Cisneros contends, grant a variance to crim-
inal history category II. The court took into account the fact that Cisneros
received criminal history points for a conviction that was almost 15 years old,
but it applied the correct criminal history category (III), the correct offense
level (29), and the correct guideline range (108−135 months). Cisneros has
failed to rebut the presumption of reasonableness that attaches to a below-
guideline sentence or otherwise show that the sentence is substantively unrea-
sonable on plain-error review. See United States v. Simpson, 796 F.3d 548, 557
(5th Cir. 2015).

      The judgment is AFFIRMED.




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