   Case: 10-10375       Document: 00511533766         Page: 1     Date Filed: 07/08/2011




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

                                                                            FILED
                                                                            July 8, 2011
                                       No. 10-10375
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

ALFREDO MEDINA,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 4:09-CR-133-1




Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Alfredo Medina appeals his sentence of 480 months for distributing more
than 500 grams of methamphetamine. Finding no error, we affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-10375    Document: 00511533766      Page: 2    Date Filed: 07/08/2011



                                  No. 10-10375

                                         I.
       Medina pleaded guilty of distributing more than 500 grams of metham-
phetamine. According to the presentence report (“PSR”), he and his wife were
the principal source of methamphetamine for a drug trafficker. The PSR, upon
consideration of the facts available, recommended that Medina be held accounta-
ble for distributing 162.84 kilograms of methamphetamine.
      Because his offense involved more than 15 kilograms of methampheta-
mine, Medina’s base offense level was 38; the PSR also recommended that he re-
ceive a three-level reduction for acceptance of responsibility and adjustments for
possessing a firearm and for importing drugs from Mexico via a drug cartel, re-
sulting in a final offense level of 39. Medina had no criminal history points, plac-
ing him in criminal history category I, yielding an advisory guideline range of
262-327 months in prison (the offense also carried a statutory minimum of 10
years and maximum of life).
      Medina objected to the attribution of 162.84 kilograms, arguing that the
calculation was high in light of his admission that he had sold approximately one
kilogram to the drug trafficker on about thirty occasions and the drug trafficker’s
admission that he had bought about one kilogram every 7-10 days from Medina’s
predecessor. Medina admitted that this new calculation of approximately 30 ki-
lograms would not affect his guideline range, because it was still over 15 kilo-
grams, but he argued that it could affect the sentence selected within that range.
      The probation officer compiling the PSR responded that 162.84 kilograms
was a conservative estimate of the quantities involved, based on law enforce-
ment estimates that Medina and his wife had sold five pounds of methamphet-
amine per week in 2008 and three pounds per week in 2009. The probation offi-
cer also noted that an upward departure may be warranted because the drug
quantity was more than ten times the minimum required to achieve a base of-
fense level of 38, and because Medina had used his children in the course of his

                                         2
   Case: 10-10375    Document: 00511533766      Page: 3    Date Filed: 07/08/2011



                                  No. 10-10375

drug dealing activity.
      The district court ordered the following regarding Medina’s objection:
      [T]he court tentatively has concluded that Medina’s objections are
      without merit, that Medina should not receive any reduction in his
      offense level based on acceptance of responsibility because of his
      frivolous denial and contest of relevant conduct in the form of drug
      quantities that can be taken into account by the court in determin-
      ing what sentence to impose, and that a sentence above the top of
      the advisory guideline range would be appropriate in this case for
      the reasons given by the probation officer in the third addendum to
      the presentence report. The parties should take such tentative con-
      clusions into account in making decisions as to the presentations to
      be made at the sentencing hearing.

In response, Medina argued that the objection to the PSR was not frivolous and
did not amount to a false denial of relevant conduct.
      At sentencing, Medina announced that he was abandoning his objection
to the quantity calculation in light of the court’s stated tentative conclusion. The
court explained, however, that “the mere abandonment of the objection doesn’t
change the fact that your client has not accepted responsibility. So I leave it up
to you if you want to pursue the objection, bearing that in mind.” The court also
noted that “whether you abandon the objection or not your client is still subject
to whatever the result would be from him having made the objection in the first
place.” Medina abandoned the objection.
      The court then asked Medina whether he now accepted responsibility for
distributing 162.84 kilograms; Medina responded, through counsel, that he had
distributed only between five and six kilograms, so that is all the methamphet-
amine for which he should be held accountable. Accordingly, the court found
that Medina had frivolously contested and falsely denied relevant conduct and
thus had not accepted responsibility. The court then adopted the PSR with the
exception of the acceptance-of-responsibility recommendation, resulting in a


                                         3
   Case: 10-10375       Document: 00511533766           Page: 4     Date Filed: 07/08/2011



                                        No. 10-10375

guideline range of 360 months to life.
       On appeal, Medina argues that he was coerced by the district court to
waive his objection to the drug calculation; that he did not voluntarily, knowing-
ly, and intentionally waive his objection; and that the sentence is unreasonable.
He does not challenge the district court’s characterization of the objection as friv-
olous, the denial of the acceptance-of-responsibility reduction, the PSR’s drug-
quantity determination, or the final guideline calculation.


                                               II.
       We review a criminal sentence for reasonableness. Gall v. United States,
552 U.S. 38, 46 (2007). We first determine whether the district court committed
any procedural errors, “such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence—including an explan-
ation for any deviation from the Guidelines range.” Id. at 51. If the sentence is
procedurally sound, we then “consider the substantive reasonableness of the sen-
tence imposed under an abuse-of-discretion standard . . . . tak[ing] into account
the totality of the circumstances.” Id. If the sentence is within a properly calcu-
lated guidelines range, it is accorded a presumption of reasonableness. See Unit-
ed States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).


                                              III.
       Medina contends that he was coerced by the district court to waive his ob-
jection to the 162.84 kilograms attributed to him in the PSR.1 The record does


       1
        The government maintains that Medina did not actually withdraw his objection to the
drug calculation, pointing to Medina’s later statement that he is willing to accept responsibili-
                                                                                   (continued...)

                                               4
   Case: 10-10375        Document: 00511533766           Page: 5     Date Filed: 07/08/2011



                                         No. 10-10375

not support such a conclusion.
       At the sentencing hearing, the court had already made a tentative decision
that the objection was frivolous and that it was inclined to deny Medina any re-
duction for acceptance of responsibility. The court then allowed Medina the op-
portunity to persist in the objection or withdraw it. That was not coercion, be-
cause there was nothing the court could use to coerce: The court made it plain
that Medina could persist in his objection without altering the court’s approach
to the sentencing. The court’s stated conclusion that the objection was frivolous
SSa conclusion Medina does not challenge hereSScannot serve as the basis for
finding coercion, because it would be absurd for a detrimental legal ruling on an
objection to be construed as the court’s coercing a defendant to withdraw that ob-
jection.
       If anything, the district court’s emphasis on the relative irrelevance of Me-
dina’s decision to persist in or withdraw the objection demonstrates the absence
of coercion. The spectre of judicial coercion is more likely to arise where the
court tells the defendant that he must withdraw the objection or lose the pos-
sibility of gaining a reduction for acceptance of responsibility.


                                               IV.
       Medina contends he did not “voluntarily, knowingly, and intelligently”
withdraw his objection. It is uncertain, however, what legal argument Medina
is making. The inclusion of the word “voluntarily” in that phrase seemingly im-


       1
         (...continued)
ty for only 5-6 kilograms—not the 162.84 kilograms calculated in the PSR. There is, however,
a distinction to be made: A defendant can withdraw an objection to a PSR’s drug quantity cal-
culation (because, for example, there is no evidence that can be put forth to contest the calcu-
lation) but still refuse to accept personal responsibility for that calculation (because he contin-
ues to believe that the calculation is incorrect). On the basis of this record, it appears that Me-
dina did just that: He formally withdrew his objection to the PSR but refused to accept re-
sponsibility for a drug quantity greater than 5-6 kilograms.

                                                5
   Case: 10-10375       Document: 00511533766   Page: 6   Date Filed: 07/08/2011



                                   No. 10-10375

plicates the possibility of judicial coercion—which we have addressed above—but
the inclusion of “knowingly” and “intelligently” is inappropriate to the question
of judicial coercion.
      Medina cites no law, nor can we find any, that suggests that a district
court, faced with a statement by defense counsel that a defendant is withdraw-
ing an objection, is required independently to investigate whether that defen-
dant is actually “knowingly and intelligently” withdrawing the objection in spite
of his counsel’s explicit statement. To the contrary, it seems obvious that a court
should fully credit counsel’s withdrawal of an objection where counsel can readi-
ly confer with the defendant and the defendant fails to correct counsel’s with-
drawal—either privately to counsel or in a direct statement to the court at sen-
tencing, neither of which occurred here.


                                        V.
      Medina claims his sentence is substantively unreasonable, particularly in
comparison to the sentenced imposed on his co-defendant wife (who was allowed
to plead guilty to a lesser amount of methamphetamine, assigned a guidelines
range of 262-327 months, and sentenced to 327 months). He contends that, even
if he did not accept responsibility, his sentence is “way too high”; that the court
did not explain why his sentence was higher than that of his wife; and that the
sentence is manifestly unjust because Medina is “ a 50-year old man, with a
sixth-grade education, in poor health, who had never been convicted of a crime
before, who may never see his children again, and who will be deported upon
completion of his sentence.” Finally, Medina presents irrelevant statistics sug-
gesting that this is an unusual sentence for a drug offense, as well as his own
counsel’s assertion that this sentence is greater than those usually given to his
clients.
      All of these arguments, with the exception of the irrelevant statistics and

                                         6
   Case: 10-10375    Document: 00511533766      Page: 7    Date Filed: 07/08/2011



                                  No. 10-10375

even more irrelevant reference to Medina’s counsel’s past clients, were presented
to the district court at sentencing. The court acknowledged all of Medina’s argu-
ments but found that a 480-month sentence was necessary to meet the require-
ments of sentencing. The court explained that the sentence takes into account
the amount of drugs involved (over ten times the amount necessary to trigger his
base offense level); the fact that the drugs were imported from Mexico through
affiliations with a drug cartel; and Medina’s use of his own children in his drug
trafficking activity—his three daughters were present during drug sales, and
one was used to help translate from Spanish to English during a drug transac-
tion and to send text messages made in furtherance of Medina’s trafficking.
      To the extent that we should consider Medina’s argument that his charac-
teristics, compared to those of his wife, entitle him to a more lenient sentence,
the record refutes the premise underlying that argument. The PSR, which was
adopted by the district court, shows that Medina had a higher degree of involve-
ment in the drug trafficking scheme than did his wife. Medina stated to the
court, before sentencing, that he “pulled his wife into this.” His wife also did not
contest the drug quantity determination, which resulted in her receiving an of-
fense-level reduction for acceptance of responsibility and a guideline range lower
than that of Medina. Accordingly, her sentence was at the top of her guideline
range, whereas Medina’s was within his range.
      In sum, it was not an abuse of discretion to impose this sentence based on
the district court’s findings of fact and stated reasons—particularly given the
presumption of reasonableness accorded to a within-guidelines sentence. The
judgment of sentence is AFFIRMED.




                                         7
