     Case: 10-10954 Document: 00511502139 Page: 1 Date Filed: 06/08/2011




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

                                                 FILED
                                                                             June 8, 2011
                                     No. 10-10954
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

DIMAS HUMBERTO PENA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:10-CR-66-5


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Dimas Humberto Pena appeals his 168-month sentence, imposed following
his guilty-plea conviction for conspiracy to possess, with intent to distribute, five
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846.
He was sentenced at the lower end of the advisory Guidelines sentencing range.
Pena contends: the district court erred in applying the two-level, leadership-role
enhancement under Guideline § 3B1.1(c); it erred in failing to provide sufficient
reasoning for the sentence; and the sentence was substantively unreasonable.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10954

      In contending the court erred in finding he was an organizer, leader,
manager, or supervisor of the criminal activity, and applying Guideline
§ 3B1.1(c)’s two-level enhancement, Pena maintains: he did not recruit anyone
to participate in the planned robbery of a cocaine stash house; the other factors
relied upon by the district court were incidental to his role as an ordinary
participant in the criminal activity; and the court erred by not requiring the
Government to produce testimony to support assertions made in the presentence
investigation report (PSR), and by not requiring a hearing.
      The determination that defendant had an aggravating role is a factual
finding reviewed for clear error. United States v. Rose, 449 F.3d 627, 633 (5th
Cir. 2006). Such finding need only be plausible in the light of the entire record.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      The PSR stated that Pena recruited two accomplices, was involved in
planning the robbery, and supplied firearms to four co-defendants.            This
information was sufficient to support the enhancement. See, e.g., United States
v. Peters, 978 F.2d 166, 170 & n.3 (5th Cir. 1992) (relying on facts in PSR
sufficient for Guideline § 3B1.1 enhancement). Although Pena asserts that the
district court should not have relied on the PSR, a PSR typically has “sufficient
indicia of reliability to permit the sentencing court to rely on it at sentencing”,
and defendant bears the burden of disproving the facts provided by the PSR.
United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (citation and internal
quotation marks omitted). Because Pena did not adduce evidence to rebut the
facts in the PSR, the district court did not err by adopting it, including relying
on facts provided by it.
      In contending that the district court failed to provide sufficient reasoning
for the sentence, Pena maintains the court made only a conclusional statement
that the sentence was sufficient, but not greater than necessary, to meet the
objectives of the sentencing factors, without identifying the sentencing factors
upon which it relied. Because Pena did not object to the sufficiency of the court’s

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explanation, this claim is reviewed only for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Under such review,
defendant must show a clear or obvious error affecting his substantial rights.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Even if such showing is
made, relief is discretionary, and should be exercised only when the error
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings”. Id. (citation and internal quotation marks omitted).
      The district court gave fact-specific reasons for denying Pena’s request for
a downward departure or variance. It sentenced Pena within the advisory
Guidelines sentencing range, concluding that it was sufficient, but not greater
than necessary, based on that range and the 18 U.S.C. § 3553(a) sentencing
factors. Accordingly, the court did not commit error. See Rita v. United States,
551 U.S. 338, 356-59 (2007) (holding sentencing judge’s statement of reasons was
brief but legally sufficient).
      Finally, Pena asserts that his sentence was substantively unreasonable
because he: was a first-time, non-violent offender; joined the conspiracy with
little forethought; had only a slight connection to one firearm that was involved
in the offense; had a small child in Honduras; and accepted full responsibility for
the offense. Conceding that our court applies a presumption of reasonableness
to a within-Guidelines sentence, e.g., United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008), Pena maintains the presumption has been
rebutted because he has shown specific reasons why the sentence was greater
than necessary.
      Although post-Booker, the sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the advisory
Guidelines 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.,

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Cisneros-Gutierrez, 517 F.3d at 764; United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005). Pena does not claim procedural error.
      Pena fails to rebut the presumption of reasonableness that attaches to his
within-Guidelines sentence. By asserting that the sentence was greater than
necessary, Pena essentially asks our court to re-weigh the § 3553 factors. The
sentencing judge, however, “is in a superior position to find facts and judge their
import under § 3553(a) with respect to a particular defendant”.          Campos-
Maldonado, 531 F.3d at 339 (citation omitted).
      AFFIRMED.




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