     Case: 15-11135      Document: 00513685850         Page: 1    Date Filed: 09/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-11135                                FILED
                                  Summary Calendar                      September 20, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

LUCAS CARBAJAL-GONZALEZ, also known as Lucas Carbajal,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-201-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Lucas Carbajal-Gonzalez pleaded guilty to conspiring to possess with
intent to distribute methamphetamine, and he was sentenced within the
applicable guidelines range to 240 months of imprisonment. For the first time
on appeal, he challenges the sufficiency of the factual basis for his guilty plea
and the procedural reasonableness of his sentence. We review for plain error.
See United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (factual basis);


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-11135

United States v. Benitez, 809 F.3d 243, 249 (5th Cir. 2015), cert. denied, 136
S. Ct. 1694 (2016) (sentence).
      To prove a conspiracy under 21 U.S.C. § 846, the Government had to
establish that (1) an agreement existed between two or more persons to violate
the narcotics laws, (2) Carbajal-Gonzalez knew of the existence of the
agreement, and (3) he voluntarily participated in the conspiracy. See United
States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011).
      In   this   case,    Carbajal-Gonzalez      admitted    that   he    received
methamphetamine from unknown individuals in Arkansas and Texas; that on
occasion, he delivered methamphetamine to others in Dallas and Fort Worth,
Texas; and that he was arrested on his way to Fort Worth in possession of
approximately two kilograms of methamphetamine.                 In addition, the
presentence report (PSR)—which the district court adopted without
objection—contained       facts   and   circumstances,   including    corroborated
statements of a confidential informant, from which an agreement to violate
federal drug laws and Carbajal-Gonzalez’s knowledge and participation could
be inferred. See United States v. Lechuga, 888 F.2d 1472, 1476-77 (5th Cir.
1989). Further, the facts set forth in the PSR support the conclusion that at
least one other coconspirator did exist and that Carbajal-Gonzalez conspired
with him; thus, contrary to Carbajal-Gonzalez’s argument, the factual basis is
not insufficient because it fails to identify any other coconspirators by name.
See United States v. Mitchell, 792 F.3d 581, 582-83 (5th Cir. 2015) (per curiam).
Nothing suggests that Carbajal-Gonzalez was merely an acquirer or
street-level user, such that the buyer-seller exception would apply in his case.
See United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en banc).
      Moreover, even assuming Carbajal-Gonzalez could show a clear or
obvious error, he has not shown a reasonable probability that, but for the error,



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                                   No. 15-11135

he would not have entered his guilty plea. See Puckett v. United States, 556
U.S. 129, 135 (2009); United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004). Accordingly, Carbajal-Gonzalez has not shown that the district court
plainly erred in finding a legally sufficient basis for his guilty plea. See Trejo,
610 F.3d at 313, 317.
      In his first sentencing challenge, Carbajal-Gonzalez complains about the
district court’s imposition of the two-level enhancement under U.S.S.G.
§ 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or
distributing a controlled substance. However, his argument that a ranch does
not qualify as a “premises” under the Guidelines misconstrues the record, as
the PSR explicitly referred to a house, or residence, on a ranch near Little Rock,
Arkansas.    Carbajal-Gonzalez offers no legal support for his conclusory
argument that a premises must be specifically identified as a prerequisite to
its use for the application of a § 2D1.1(b)(12) enhancement.          Further, he
presented no evidence to rebut the informant’s statements that the house on
the ranch was used to store kilogram-quantities of drugs. See United States v.
Alaniz, 726 F.3d 586, 619 (5th Cir. 2013). Carbajal-Gonzalez has not shown
that the district court plainly erred in applying § 2D1.1(b)(12) in this case. See
id.; § 2D1.1(b)(12) & cmt. n.17.
      We turn next to Carbajal-Gonzalez’s argument that the district court
erred in applying the two-level leadership or management role enhancement
under U.S.S.G. § 3B1.1(c). Here, the PSR recounted, inter alia, that Carbajal-
Gonzalez sometimes used the informant’s residence as a staging location for
shipments of heroin; that he instructed the informant to receive delivery of a
truck that was payment for a quantity of methamphetamine; that he supplied
an individual in Dallas with three kilograms of heroin per week; that he sent
an individual to Fort Worth in June 2014 to obtain a drug shipment; and that



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                                  No. 15-11135

an individual who worked for Carbajal-Gonzalez was arrested in New York in
July 2014 with two kilograms of heroin. Based on this information, the district
court could infer that Carbajal-Gonzalez exercised managerial responsibility
over at least one other participant in the conspiracy. See § 3B1.1(c) & cmt. n.2;
United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).              Additionally,
Carbajal-Gonzalez’s contention that none of the aforementioned persons
qualified as a “participant” under § 3B1.1 is meritless. Even assuming the
informant did not qualify as a participant, the other individuals referenced in
the PSR did. See § 3B1.1, cmt. n.1; see also United States v. Mitchell, 792 F.3d
581, 582-83 (5th Cir. 2015) (per curiam) (noting that coconspirators do not need
to be identified).     Nothing in the record supports a finding, as Carbajal-
Gonzalez suggests, that the unnamed individuals were merely customers or
end-users.
      Finally,   Carbajal-Gonzalez    challenges   the     two-level    importation
enhancement he received under § 2D1.1(b)(5). However, his newly asserted
challenges to the importation enhancement raise factual issues which could
have been resolved by the district court upon proper objection at sentencing,
and he therefore cannot show plain error. See United States v. Fierro, 38 F.3d
761, 774 (5th Cir. 1994). Carbajal-Gonzalez’s argument that the Guideline has
a mens rea requirement is foreclosed by United States v. Serfass, 684 F.3d 548,
552 (5th Cir. 2012).
      The judgment of the district court is AFFIRMED.




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