     Case: 12-40444       Document: 00512092665         Page: 1     Date Filed: 12/21/2012




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

                                                                            FILED
                                                                        December 21, 2012
                                     No. 12-40444
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MIGUEL ANGEL MORA-GONZALEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:10-CR-1332-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Pursuant to his guilty plea, Miguel Angel Mora-Gonzalez was convicted of
possession with intent to distribute 694.05 kilograms of marijuana and received,
inter alia, 262-months’ imprisonment. Contesting that sentence, Mora contends:
the district court’s imposing enhancements under Guidelines §§ 3B1.1(b)
(supervisory role) and 3C1.1 (obstructing justice) was erroneous; the evidence of
his previous marijuana trafficking was insufficient to support an increase to his



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40444

base-offense level; and the duration of his imprisonment violates his Eighth
Amendment right to freedom from cruel and unusual punishment.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect,
its application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Regarding the supervisory-role enhancement of his sentence under
Guideline § 3B1.1(b), Mora contends the evidence was insufficient to support the
district court’s finding he was a leader or organizer. A defendant’s role in an
offense is a factual finding reviewed for clear error. United States v. Rose, 449
F.3d 627, 633 (5th Cir. 2006).
      Mora presented no evidence rebutting the presentence investigation report
(PSR), which provided that Mora recruited, hired, transported, and paid three
co-defendants for their participation in the offense. The district court was
entitled to adopt those facts without further inquiry. United States v. Ollison,
555 F.3d 152, 164 (5th Cir. 2009). Because the district court’s finding Mora was
a leader or organizer is “plausible in [the] light of the record read as a whole”, its
finding him eligible for an enhancement under Guideline § 3B1.1(b) was not
clear error. Rose, 449 F.3d at 633.
      Regarding the obstruction-of-justice enhancement of his sentence under
Guideline § 3C1.1, Mora contends his recorded prison telephone conversations
with his common-law wife were inadmissible as privileged marital
communications and because he was not warned in Spanish they would be
monitored and recorded. The admission of such evidence is reviewed for abuse
of discretion. United States v. Ramirez, 145 F.3d 345, 355 (5th Cir. 1998).

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                                   No. 12-40444

      Having heard Special Agent Flores testify at the sentencing hearing that
80 percent of the recordings contained warnings in Spanish that conversations
were monitored, the district court found the privilege waived. In any event,
Mora and his wife discussed plans to lie to federal agents and suborn a
codefendant’s perjury. Conversations between husband and wife, which relate
to the joint commission of crime, are not protected by the marital-
communications privilege. Id. Therefore, the court’s admitting the conversations
was not an abuse of discretion, id., and its finding Mora eligible for an
enhancement under Guideline § 3C1.1 was not clear error. Rose, 449 F.3d at 633.
      Regarding his sufficiency-of-the-evidence challenge to the contraband
attributable to him for purposes of calculating his base-offense level, Mora
asserts the district court’s findings were speculative.           Drug quantities
attributable to a defendant are findings of fact reviewed for clear error. United
States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).
      A sentencing judge may consider acts “that [are] part of the same course
of conduct . . . as the offense of conviction”. U.S.S.G. § 1B1.3(a)(2); United States
v. Wall, 180 F.3d 641, 644 (5th Cir. 1999). Again, the court based its findings on
the PSR, which Mora did not rebut. Additionally, Agent Flores and co-defendant
Mendez-Flores testified that Mora was involved in at least ten prior marijuana
loads, totaling approximately 7,634 kilograms. These findings were “plausible
in [the] light of the record”. Rose, 449 F.3d at 633.
      Regarding his Eighth Amendment claim, Mora contends the 262-month
sentence is cruel and unusual because it is disproportionate to the offense, and
because he is 22-years’ old with no prior criminal convictions. Because he did
not raise this claim in district court, review is only for plain error. Puckett v.
United States, 556 U.S. 129, 135 (2009).
      Under plain-error review, Mora must show a clear or obvious error that
affected his substantial rights. Id. This he cannot do. The Eighth Amendment
proscribes a sentence that is grossly disproportionate to the offense. McGruder

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                                 No. 12-40444

v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992). Mora’s sentence was at the bottom
of the advisory Guidelines sentencing range, and the Guidelines are a
“convincing   objective   indicator   of       proportionality”.     United    States   v.
Cardenas-Alvarez, 987 F.2d 1129, 1133-34 (5th Cir. 1993) (internal citations
omitted).
      AFFIRMED.




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