     Case: 10-40358     Document: 00511716956         Page: 1     Date Filed: 01/06/2012




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

                                                                            FILED
                                                                          January 6, 2012
                                     No. 10-40358
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CARLOS AMADOR,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-971-3


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Carlos Amador pleaded guilty to conspiracy to possess, with intent to
distribute, more than 500 grams of methamphetamine; he was sentenced, inter
alia, to 292-months’ imprisonment.
        Amador first claims the district court erred by failing to conduct a hearing
pursuant to United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated
on other grounds by Flanagan v. United States, 465 U.S. 259, 263 & n.2 (1984),
or an evidentiary hearing, concerning trial counsel’s conflicts of interest. The

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40358    Document: 00511716956       Page: 2    Date Filed: 01/06/2012

                                   No. 10-40358

district court held a sufficient hearing regarding such conflicts. After discussing
them, the court determined–as it has the authority to do–that it would not
accept a waiver from Amador to allow his then counsel to represent him. Wheat
v. United States, 486 U.S. 153, 160-63 (1988); United States v. Sanchez Guerrero,
546 F.3d 328, 332-34 (5th Cir. 2008). Because a waiver of trial counsel’s conflicts
of interest was not an option, a Garcia hearing (to, inter alia, ensure waiver is
knowing and voluntary) was not necessary. See Garcia, 517 F.2d at 278.
      Amador also contends his sentence is unreasonable and unconstitutional,
based on other claimed errors, discussed infra. 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 Guideline-sentencing range for use in deciding on the
sentence to impose. E.g., 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., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008).
      Amador preserved his objection in district court to the Guideline § 3B1.1(b)
enhancement, discussed infra; but, he did not preserve the other sentencing
issues raised on appeal. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009). These unpreserved issues are reviewed only for plain
error. To establish reversible plain error, Amador must show a clear or obvious
error affecting his substantial rights. E.g., Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). Even if such error is shown, our court retains the discretion
to correct it and, generally, will do so only if it “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings”. Id. (citations and
internal quotation marks omitted).
      Amador contends the court erred by: failing to consider the § 3553(a)
sentencing factors; “strictly appl[ying]” the Sentencing Guidelines; and



                                          2
   Case: 10-40358      Document: 00511716956    Page: 3   Date Filed: 01/06/2012

                                  No. 10-40358

improperly enhancing his sentence under Guideline § 3B1.1(b). As discussed,
the first two issues are reviewed only for plain error.
      When, as here, the district court imposed a within-Guidelines sentence,
our court presumes the § 3553(a) factors were considered. See United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005). The district court heard testimony at
sentencing relating to those factors. Thus, because Amador has not shown the
district court either believed the Guidelines were mandatory or failed to consider
the § 3553(a) factors, there was no error.
      Regarding Guideline § 3B1.1(b), a three-level increase in a defendant’s
offense level is authorized “[i]f the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity involved five or more
participants or was otherwise extensive”. U.S.S.G. § 3B1.1(b). Amador was
involved in an extensive drug conspiracy, wherein he: purchased drugs; sold
them; and employed and directed runners to deliver, and return payment for, the
drugs. Amador exercised managerial and supervisory responsibility over drugs
and drug proceeds. Thus, the enhancement is plausible in light of the record as
a whole and should not be disturbed. E.g., United States v. Morris, 46 F.3d 410,
419 (5th Cir. 1995).
      Amador further contends his sentence is substantively unreasonable.
When, as here, the sentence imposed is within a properly-calculated Guidelines
range, the sentence is presumptively reasonable. E.g., United States v. Newson,
515 F.3d 374, 379 (5th Cir. 2008). Amador has failed to present evidence to
overcome that presumption. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). Therefore, no error has been shown.
      Finally, Amador’s challenge to the constitutionality of the Guidelines
regime and his assertions of an Eighth Amendment claim do not warrant review.
United States v. Jasso, 634 F.3d 305, 309 (5th Cir.), cert. denied, 131 S. Ct. 3004
(2011).
      AFFIRMED.

                                        3
Case: 10-40358   Document: 00511716956   Page: 4   Date Filed: 01/06/2012

                            No. 10-40358




                                  4
