     Case: 18-40143      Document: 00514738170         Page: 1    Date Filed: 11/27/2018




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

                                    No. 18-40143                             FILED
                                  Summary Calendar                   November 27, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

ROBERTO RODRIGUEZ,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:17-CR-358-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Roberto Rodriguez pleaded guilty without a plea agreement to
conspiracy to possess with intent to distribute methamphetamine and two
counts of possession with intent to distribute methamphetamine and was
sentenced to 121 months of imprisonment on each count, to be served
concurrently, and three years of supervised release on each count, to be served
concurrently. He contends that the district court erred in applying a two-level


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40143

enhancement under U.S.S.G. § 3B1.1(c) based on its finding that he was a
leader in the offense and asserts that he and his codefendant were equal
participants in the conspiracy. Because he objected to the enhancement in the
district court, he preserved the issue for appeal. See United States v. Fillmore,
889 F.3d 249, 255 (5th Cir. 2018).
      The Presentence Report (PSR) had an adequate factual basis, and the
district court was entitled to rely on it because Rodriguez did not present any
evidence to rebut it. See United States v. Harris, 702 F.3d 226, 230 (5th Cir.
2012). The PSR shows that Rodriguez’s girlfriend/codefendant began smoking
methamphetamine after she met him; she stored drugs at her house for
Rodriguez; and he called her from prison and gave her specific instructions to
deliver a certain amount of methamphetamine to a person who would pay for
his bond for release. This evidence demonstrates that Rodriguez had control
over at least one participant in the conspiracy. See United States v. Delgado,
672 F.3d 320, 345 (5th Cir. 2012) (en banc). Because the district court’s finding
that Rodriguez was a leader in the offense was plausible in view of the record
as a whole, the district court did not clearly err in imposing this enhancement.
See id.; see also United States v. Ochoa-Gomez, 777 F.3d 278, 282 (5th Cir.
2015).
      Second, Rodriguez argues that the sentence was substantively
unreasonable and excessive in view of his personal history, his drug addiction,
his difficult childhood, and his low criminal history. In addition, he asserts
that the methamphetamine guidelines provision lacks an empirical basis and
overstates the seriousness of his offense.
      Because Rodriguez did not raise this issue in the district court, review is
limited to plain error. See United States v. Heard, 709 F.3d 413, 425 (5th Cir.
2013). To establish plain error, he must show a forfeited error that is clear and



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                                  No. 18-40143

obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, the court has the
discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Although a district court has discretion to vary from a guidelines range
on the ground that a Guideline lacks an empirical basis, the court is not
required to do so, and the lack of an empirical grounding does not necessarily
render a sentence unreasonable or disturb the presumption of reasonableness.
United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009). Moreover, the
record demonstrates that the district court considered the PSR’s guidelines
calculations, as well as its discussion of his personal and criminal history, the
objections and arguments of the parties, and Rodriguez’s allocution.
Rodriguez’s contentions amount to a mere disagreement with the district
court’s weighing of the 18 U.S.C. § 3553(a) factors, which is insufficient to rebut
the presumption of reasonableness that attaches to his within-guidelines
sentence.   See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Therefore, Rodriguez has not shown that the within-guidelines sentence was
substantively unreasonable. See id.
      The Government contends that the judgment includes a clerical error
concerning the end dates for all three offenses. Federal Rule of Criminal
Procedure 36 states: “After giving any notice it considers appropriate, the court
may at any time correct a clerical error in a judgment, order, or other part of
the record, or correct an error in the record arising from oversight or omission.”
Remand is appropriate here. Accordingly, a limited remand is ORDERED for
the purpose of correcting the judgment to reflect correct end dates for each
offense. The judgment is otherwise AFFIRMED.




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