     Case: 13-10016       Document: 00512364154         Page: 1     Date Filed: 09/05/2013




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

                                                                            FILED
                                                                        September 5, 2013
                                     No. 13-10016
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LIONEL JUBENAL VILLICANA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-158-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Lionel Jubenal Villicana pleaded guilty to possession with intent to
distribute a controlled substance. The district court departed downward in
sentencing him to a 156-month term of imprisonment, which was 84 months
below the guidelines range. Villicana was ordered to serve a three-year period
of supervised release and to pay a $25,000 fine.
       In this appeal, Villicana contends generally that the sentence was imposed
improperly and was unreasonably excessive “in light of all relevant facts and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-10016

considerations in the sentencing scheme.” He asserts that the presentence
report overstated his role in the offense and attributed to him, as relevant
conduct, criminal activities in which he was not involved. He contends also that
the district court erred in refusing to grant him an adjustment for acceptance of
responsibility and that the sentence is substantively unreasonable.
      After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for procedural error and substantive reasonableness under an abuse of discretion
standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010) (citing
Gall v. United States, 552 U.S. 38, 50-51 (2007)).           The district court’s
interpretation or application of the Guidelines is reviewed de novo, and its
factual findings are reviewed for clear error. Id. at 472. “There is no clear error
if the district court’s finding is plausible in light of the record as a whole.”
United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010) (internal quotation
marks and citation omitted).
      Villicana invokes Blakely v. Washington, 542 U.S. 296 (2004), in support
of the proposition that the district court erred by calculating his sentence on the
basis of facts that were not admitted by him. Villicana was not sentenced under
a mandatory guidelines system.       In the absence of mandatory use of the
Guidelines, the Sixth Amendment does not preclude the sentencing judge from
finding all facts relevant to sentencing. See United States v. Whitfield, 590 F.3d
325, 367 (5th Cir. 2009); see also United States v. Mares, 402 F.3d 511, 518 (5th
Cir. 2005). Under the advisory sentencing regime, a district court is free to find
all facts relevant to sentencing by a preponderance of the evidence. Whitfield,
590 F.3d at 367. We reject Villicana’s suggestion that this is a case in which a
more rigorous standard should be applied. See United States v. Brooks, 681 F.3d
678, 712-13 (5th Cir. 2012), cert. denied, 133 S. Ct. 836, and cert. denied, 133
S. Ct. 837, and cert. denied, 133 S. Ct. 839 (2013).
      “[A] district court may adopt the facts contained in a [presentence report]
without further inquiry if those facts have an adequate evidentiary basis with

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sufficient indicia of reliability and the defendant does not present rebuttal
evidence or otherwise demonstrate that the information in the [presentence
report] is unreliable.” United States v. Cabrera, 288 F.3d 163, 173 (5th Cir.
2002); see also United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010) (“The
defendant bears the burden of presenting rebuttal evidence to demonstrate that
the information in the [presentence report] is inaccurate or materially untrue.”).
      The probation officer determined that Villicana was an organizer or leader
of criminal activity that involved five or more participants, a finding that
resulted in a four-level increase in Villicana’s offense level.      See U.S.S.G.
§ 3B1.1(a). In determining a defendant’s role in the offense, “a district court is
permitted to draw reasonable inferences from the facts, and these inferences are
fact-findings reviewed for clear error.” United States v. Caldwell, 448 F.3d 287,
290 (5th Cir. 2006). “There are two parts to the § 3B1.1(a) enhancement: the
defendant’s conduct and the number of participants.” United States v. Curtis,
635 F.3d 704, 720 n.57 (5th Cir. 2011). Villicana does not dispute that there
were five or more participants in his drug organization. Instead, based on the
testimony of the case agent at the sentencing hearing, he contends that the
adjusted offense level overstated his role in the offense.
      Villicana’s role in arranging the transportation of marijuana from the
border to areas inland and of recruiting drivers and directing their activities are
consistent with the role of an organizer or leader of a drug conspiracy. See
§ 3B1.1, comment. (n.4); United States v. Cantu-Ramirez, 669 F.3d 619, 629-30
(5th Cir.), cert. denied, 132 S. Ct. 2759, and cert. denied, 133 S. Ct. 247 (2012).
The specific findings in the presentence report are replete with instances in
which Villicana engaged in such activities. The probation officer’s findings were
unrebutted by Villicana and were not directly contradicted by the case agent’s
testimony. See Cabrera, 288 F.3d 173. Villicana has not shown that the district
court clearly erred in finding that he was an organizer or leader of the drug
conspiracy. See Caldwell, 448 F.3d at 290.

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      Villicana asserts that the presentence report attributed to him, as relevant
conduct, criminal activities in which he was not involved. He complains that he
was held responsible for the criminal activities of other participants in the drug
conspiracy and criminal conduct that occurred when he was out of the country;
that his criminal activities involved transportation of marijuana only, and that
he was improperly held responsible for trafficking in cocaine and
methamphetamine; that he was held responsible for criminal activities that were
not reasonably foreseeable to him; and that the district court’s findings with
respect to foreseeability were inadequate. This court reviews the district court’s
fact findings on relevant conduct and drug quantity for clear error. United
States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009) (relevant conduct); United
States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (drug quantity).
      Villicana did not present rebuttal evidence showing that the evidence
underlying the probation officer’s findings was unreliable, inaccurate, or
materially untrue. See Scher, 601 F.3d at 413; Cabrera, 288 F.3d at 173. The
presentence report linked Villicana to 17 transactions, which involved the same
course of conduct and a common scheme or plan. They had common accomplices,
a common purpose, a similar modus operandi, and they were related to each
other as part of an ongoing series of offenses. See U.S.S.G. § 1B1.3, comment.
(n.9(A) & (B)); United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009); United
States v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992). Because Villicana did not
present rebuttal evidence, the district court did not err in failing to make
detailed findings. See United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008)
(“If no relevant affidavits or other evidence is submitted to rebut the information
contained in the [presentence report], the court is free to adopt its findings
without further inquiry or explanation.”). The district court did not clearly err
in its relevant conduct determination. See Ekanem, 555 F.3d at 175; Betancourt,
422 F.3d at 246.



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      Villicana contends that the district court erred in refusing to award him
an adjustment for acceptance of responsibility because he frivolously objected to
the probation officer’s relevant-conduct determination. The defendant must
establish that the reduction for acceptance of responsibility is warranted.
United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996). Although a defendant
who pleads guilty prior to trial and truthfully admits relevant conduct may
qualify for the reduction, “this evidence may be outweighed by conduct of the
defendant that is inconsistent with such acceptance of responsibility.” U.S.S.G.
§ 3E1.1, comment. (n.3). In determining whether a defendant is entitled to
credit for acceptance of responsibility, the court should consider whether the
defendant was “truthfully admitting the conduct comprising the offense(s) of
conviction, and truthfully admitting or not falsely denying any additional
relevant conduct for which the defendant is accountable.” § 3E1.1, comment.
(n.1(A)). Therefore, “a defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.” Id. This court “will affirm a
sentencing court’s decision not to award a reduction. . . unless it is without
foundation, a standard of review more deferential than the clearly erroneous
standard.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008)
(internal quotation marks and citation omitted).
      Villicana’s arguments go primarily to the extent of his cooperation and his
truthful admission of the conduct to which he pleaded guilty. As to the frivolity
of his objection to the relevant-conduct determination, Villicana contends that
he did not object to the facts underlying that determination but only “the legal
interpretation of those facts and the use of unreliable information to increase his
sentence.” This contention is without merit.
      By contesting the reliability of the information underlying the relevant-
conduct determination, Villicana contested its factual basis.        It was only
necessary to show that Villicana participated in the transportation of 10,000

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kilograms of marijuana for the adjusted base offense level 36 to apply to his
offense. See U.S.S.G. § 2D1.1(c)(2). The unrebutted findings in the presentence
report reflect that Villicana trafficked in twice that amount. Villicana has not
shown that the district court’s relevant-conduct determination was “without
foundation.” See Juarez-Duarte, 513 F.3d at 211.
      Villicana contends that the sentence was substantively unreasonable.
A within-guidelines sentence is entitled to a rebuttable presumption of
reasonableness, see United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009),
and this court has applied the presumption of reasonableness to below-
guidelines sentences as well. “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” Id.
Villicana has not made such a showing.        The district court’s judgment is
AFFIRMED.




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