     Case: 14-40498      Document: 00513059448         Page: 1    Date Filed: 05/29/2015




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

                                    No. 14-40498
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                           May 29, 2015
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

DANIEL NUNEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:12-CR-191


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Daniel Nunez appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute more than 1,000
kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count
One), and conspiracy to launder monetary instruments in violation of 18 U.S.C.
§ 1956(a)(2)(A) and (h) (Count Two).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40498

      First, Nunez contends that the rationale in Crawford v. Washington, 541
U.S. 36 (2004), applies to the sentencing phase of a criminal prosecution and,
thus, his Sixth Amendment right of confrontation was violated when the
district court enhanced his sentence based on the Government’s ex parte
examinations and interviews, the probation officer’s ex parte investigation,
and information not disclosed in the presentence report (PSR). Contrary to
Nunez’s contention, Crawford does not extend a defendant’s confrontation
rights to sentencing proceedings. United States v. Beydoun, 469 F.3d 102, 108
(5th Cir. 2006). The information in the PSR was obtained from debriefings of
cooperating sources and co-conspirators, surveillance operations, consensual
monitored telephone conversations, wire intercepts, and multiple interviews
with the agent in charge of the investigation. Thus, the PSR was supported by
an adequate evidentiary basis with sufficient indicia of reliability. See United
States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014); United States v. Gaytan,
74 F.3d 545, 557-58 (5th Cir. 1996).       Aside from denying that he was
responsible for some of the marijuana loads attributed to him in the PSR and
arguing that the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2D1.1(b)
enhancements did not apply, Nunez did not present any rebuttal evidence to
demonstrate that the information in the PSR was materially untrue,
inaccurate, or unreliable. Therefore, the district court was free to adopt the
PSR’s findings without further inquiry or explanation. See Fuentes, 775 F.3d
at 220.
      Nunez contends that “[t]he unfairness of the process was exacerbated in
this case by the court considering information, relating to the increases to the
base offense level suggested by the Probation Office, that was not contained in
the PSI, and was not available to counsel for the Defendant prior to the
hearing.” Specifically, Nunez points to the fact that the district court applied



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                                        No. 14-40498

a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(12) based in part on
Nunez’s involvement with the Hargill stash house. While Nunez correctly
notes that the PSR based the § 2D1.1(b)(12) enhancement on Nunez’s
involvement with a different stash house, the PSR also provided that Nunez
and the Nunez drug trafficking organization maintained several stash houses,
including one in Hargill, Texas, as discussed at sentencing without objection
based on inadequate notice.             Accordingly, we find no merit to Nunez’s
contention that this information was not contained in the PSR. 1
       Finally, Nunez contends that the district court violated the Ex Post Facto
Clause when it enhanced his sentence under U.S.S.G. § 2D1.1(b)(12) and
(b)(14)(E) because the enhancements did not go into effect until the November
2011 version of the Sentencing Guidelines. Because Nunez did not raise this
argument in the district court, plain error review applies. See United States v.
Castillo-Estevez, 597 F.3d 238, 240 (5th Cir. 2010).
       The enhancements at issue became effective on November 1, 2010. See
Guidelines Manual, Supp. to Appendix C-Vol. III, Amendment 748, pp. 374-75,
385 (Nov. 1, 2011); Supplement to the 2010 Guidelines Manual, § 2D1.1(b)(12),
(b)(14)(E). The conspiracies to which Nunez pleaded guilty covered the time
period between August 2009 and February 6, 2012. Because the last overt
conspiratorial act occurred after the November 1, 2010, effective date of the
amendments to § 2D1.1, the district court’s application of § 2D1.1(b)(12) and



       1 Nunez cites no caselaw and provides no legal argument to support his claim that the
district court should have provided him notice that it was going to base the sentencing
enhancement on the Hargill property. See Fed. R. App. P. 28(a) (“The appellant’s brief must
contain . . . appellant’s contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies.” (emphasis added)); United States v.
Beaumont, 972 F.2d 553, 563 (5th Cir. 1992) (“Failure of an appellant to properly argue or
present issues in an appellate brief renders those issues abandoned.”). Instead, Nunez
embeds this notice deficiency argument within his confrontation-clause argument, which we
have already discussed.


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                                 No. 14-40498

(b)(14)(E) did not violate the Ex Post Facto Clause. See Peugh v. United States,
133 S. Ct. 2072, 2082-83 (2013); United States v. Olis, 429 F.3d 540, 545 (5th
Cir. 2005).
      AFFIRMED.




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