     Case: 14-41393      Document: 00513285775         Page: 1    Date Filed: 11/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-41393
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 25, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

STEPHEN SANTOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1239-1


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Stephen Santos pleaded guilty to carjacking, and the district court
sentenced him to 108 months in prison and ordered restitution. Santos appeals
his sentence on several grounds.
       For the first time on appeal, Santos contends that any facts that increase
his sentence should have been alleged in the indictment and found by a jury
under the beyond a reasonable doubt standard. Because he did not raise this


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41393

argument in the district court, review is limited to plain error. See United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
      In Booker v. United States, 543 U.S. 220 (2005), the Court extended
Apprendi v. New Jersey, 530 U.S. 466 (2000), to the Sentencing Guidelines, but
remedied the the Sixth Amendment problem posed by fact finding under the
Guidelines by rendering the Sentencing Guidelines advisory rather than
mandatory.    Booker, 543 U.S. at 244-245.       Thus, under the post-Booker
advisory guideline sentencing system, district courts are not prohibited from
making the factual findings relevant to sentencing under the preponderance of
the evidence standard, just as they did before Booker. United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005); see also United States v. Hinojosa, 749 F.3d
407, 412-13 (5th Cir. 2014). Therefore, the district court did not commit any
error, plain or otherwise, in finding facts regarding Santos’s sentence. See
Mares, 402 F.3d at 519.
      Next, Santos argues that the district court erred in imposing a six-level
sentence enhancement under U.S.S.G. § 2B3.1(b)(2)(B) based on its finding
that a firearm was “otherwise used” in the carjacking, which we review for
clear error. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). The district court did not clearly err in finding that a firearm was
“otherwise used” under § 2B3.1(b)(2)(B). The victim in the instant offense
testified that Santos pointed a firearm at him and at his nine-year-old son.
Because Santos did not rebut this evidence in the district court, the district
court was entitled to rely on the information in the PSR, as well as the victim’s
testimony, to find that Santos pointed a firearm at the victims. See United
States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007). Santos’s conduct easily
falls within the definition of “otherwise used.” See U.S.S.G. § 1B1.1, comment.
(n.1(I); United States v. Williams, 520 F.3d 414, 423 (5th Cir. 2008).



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      In addition, Santos asserts that the district court erred in imposing a
one-level sentencing enhancement under § 2B3.1(b)(7)(B) based on its finding
that the offense resulted in a loss exceeding $10,000, but less than $50,000.
Santos objected to the enhancement in the district court; the district court
determined that the two separate carjackings were part of the same course of
conduct and, therefore, the loss amount should be based on the loss caused by
both carjackings. Based on the PSR, the Kelly Blue Book, and information
provided by the victim of the offense of conviction, the district court found that
the total loss amount exceeded $10,000, including the $15,000 fair market
value of the Cadillac CTS taken in the first carjacking, the $3,509 fair market
value of the 1997 Lincoln Towncar, four tires with chrome rims valued at
$1,080, a stereo system valued at $579.09, and a $500 laptop computer and a
$200 cellular telephone left in the car by the victim. The district court correctly
based the loss amount finding on the reasonably reliable information available.
See § 2B3.1 comment. (n. 3); see United States v. Sutton, 77 F.3d 91, 94-95 (5th
Cir. 1996). Therefore, the district court did not clearly err in imposing a one-
level enhancement under § 2B3.1(b)(7)(B) based on its finding that the offense
resulted in a loss that exceeded $10,000. See United States v. Juarez-Duarte,
513 F.3d 204, 208 (5th Cir. 2008).
      According to Santos, the district court erred in ordering him to pay
restitution of $5,868.09. The victim submitted a statement that the total loss
resulting from the carjacking was $12,010.62. The PSR provided that the total
loss was approximately $5,800, including $5,000 for the car, $600 for the laptop
computer, and $200 for the cellular phone. At the sentencing hearing, the
district court considered all of this information, as well as the Kelly Blue Book
value of the car, and determined that total loss was $5,868.09, including the
car valued at $3,509, the four tires valued at $1,080, the stereo system valued



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at $579.09, the $500 laptop computer, and the $200 cellular phone. Santos
offered no rebuttal evidence.        The district court made a reasonable
determination of the loss based on all of the available information. Therefore,
the district court did not abuse its discretion in ordering Santos to pay
$5,868.09 in restitution. See United States v. Adams, 363 F.3d 363, 365-66 (5th
Cir. 2004).
      Next, Santos argues that his 108-month within-guidelines sentence was
substantively unreasonable. Santos’s within-guidelines sentence is entitled to
a presumption of reasonableness. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009). After considering Santos’s objections to the PSR and his
arguments, the district court determined that a sentence at the high end of the
87 to 108-month advisory guidelines range was appropriate. The district court
chose the sentence based on consideration of all the applicable factors in 18
U.S.C. § 3553(a). Santos has not rebutted the presumption of reasonableness.
See Cooks, 589 F.3d at 186.
      Finally, Santos contends that his counsel was ineffective because he
failed to raise the constitutional argument that the facts that increased his
sentence should have been alleged in the indictment and found by the jury
beyond a reasonable doubt. Santos did not raise his ineffective assistance
claim in the district court. Thus, the record is not sufficiently developed to
allow for a fair consideration of the claim. Accordingly, we decline to consider
it on direct appeal without prejudice to Santos’s right to assert it on collateral
review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.), cert. denied,
135 S. Ct. 123 (2014).
      AFFIRMED.




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