             Case: 12-13977   Date Filed: 05/09/2013   Page: 1 of 11




                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-13977
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:11-cr-00302-CB-N-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                       versus


CLAUDIA PEREZ-LEAL,
a.k.a. Claudia Magdalena Perez-Leal,


                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                         ________________________

                                 (May 9, 2013)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
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      After pleading guilty, Defendant Claudia Perez-Leal appeals her total 216-

month sentence for conspiracy and attempt to distribute cocaine, in violation of 21

U.S.C. §§ 846 and 841(b)(1)(A), (b)(1)(B). After review, we affirm.

                               I. BACKGROUND

A.    Indictment and Plea Hearing

      Perez-Leal and her husband were indicted on one count of conspiracy to

possess with intent to distribute more than 5 kilograms of cocaine (Count One),

one count of attempt to distribute approximately 4 kilograms of cocaine (Count

Two), and one count of possession with intent to distribute approximately 5

kilograms of cocaine (Count Three). Perez-Leal pled guilty to Counts One and

Two, and Count Three was dismissed.

      At her plea hearing, Perez-Leal objected to the government’s factual proffer,

in particular “the amounts [of cocaine] and some of the people involved.”

However, Perez-Leal indicated that she was willing to admit to the drug amounts

charged in Counts One and Two of the indictment. The district court found that

the facts admitted by Perez-Leal supported the charges in Counts One and Two,

accepted her guilty plea, and stated that the actual drug amounts would be resolved

at sentencing.




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B.    Presentence Investigation Report

      In paragraphs 4 through 25, the presentence investigation report (“PSI”)

described Defendant Perez-Leal’s offense conduct in the cocaine conspiracy, inter

alia, as follows: (1) Perez-Leal and her husband operated a cocaine smuggling and

distribution ring that funneled cocaine from Mexico to Texas and then on to

Alabama; (2) after being arrested, several drug couriers admitted transporting

cocaine for Perez-Leal to Alabama; (3) two of Perez-Leal’s drug couriers, Ramiro

Sanchez-Salazar and Eleazar Covarrubias, admitted making multiple trips to Foley,

Alabama, and the recipient, Irvin Uriel Jimenez, admitted receiving a total of

approximately 31 kilograms; (4) another of Perez-Leal’s drug couriers, Victor

Lupo-Angulo, admitted making between 10 and 15 deliveries to Luz Maria Burton

in Mobile, Alabama, carrying between 10 and 20 kilograms of cocaine on each

trip; (4) Lupo-Angulo said that he picked up the cocaine from Perez-Leal and her

husband, and had the drugs processed by Luis Colon, who acted as a go-between

for cocaine deliveries; (5) Salazar, Covarrubias, Jimenez and Colon all identified

Perez-Leal as the cocaine supplier; and (6) Perez-Leal arranged for the distribution

from Mexico, to Texas and then to Alabama and supervised her husband and

various couriers.

      In paragraph 26, the PSI stated that the parties did not agree on the amount

of cocaine involved in the conspiracy, and the probation officer conservatively


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calculated that a total of 154 kilograms of cocaine was involved for relevant

conduct purposes. However, because couriers Salazar, Covarrubias and Jimenez

made some trips together, the probation officer relied on the government’s

assertion that Perez-Leal was accountable for 120 kilograms of cocaine, a lower

amount, for calculating Perez-Leal’s base offense level.

       Based on these facts, the PSI recommended a base offense level of 36

because the offenses involved at least 50 kilograms of cocaine. See U.S.S.G.

§ 2D1.1(c)(2) (setting offense level at 36 for offenses involving between 50

kilograms and 150 kilograms of cocaine). The PSI also recommended: (1) a two-

level increase, pursuant to U.S.S.G. § 2D1.1(b)(1), because firearms were found

during a search of Salazar’s residence; (2) a two-level increase, pursuant to

§ 2D1.1(b)(14)(B) and (C), because Perez-Leal had knowingly involved a person

under the age of 18 in the importation of a controlled substance; 1 (3) a four-level

increase, pursuant to § 3B1.1(a), because Perez-Leal was an organizer or leader of

a criminal activity; and (4) a three-level decrease, pursuant to § 3E1.1, for

acceptance of responsibility. With an adjusted offense level of 41 and a criminal

history category of I, the PSI calculated an advisory guidelines range of 324 to 405

months’ imprisonment.

C.     Written Objections to the PSI

       1
         Jimenez told authorities that Leal-Perez’s children were present at some cocaine
deliveries.
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      Perez-Leal filed written objections to the PSI, objecting to some of the

factual allegations about the offense conduct. For example, Perez-Leal contended

that Colon, Salazar, Jimenez and Lupo-Angulo were not her agents or employees

in the conspiracy and did not act under her control or direction, but rather that they

all had buyer-seller relationships with each other. However, Perez-Leal did not

object to the individual amounts of cocaine identified in paragraphs 4 through 25.

Perez-Leal did object to paragraph 26, stating: “[H]er accountability is less than

120 kilograms of cocaine.”

      With regard to the PSI’s guidelines calculations, Perez-Leal objected to the

two-level firearm enhancement and the two-level enhancement for involving a

minor. Perez-Leal also objected to the four-level leader role enhancement, stating

that “she was merely a buyer-seller.”

D.    Sentencing Hearing

      At the outset of the sentencing hearing, the district court stated that it

understood there were “adjustments” to the PSI, one of which was that the two-

level firearm enhancement “is to be deleted.” The prosecutor agreed.

      The prosecutor further advised the district court that the parties also “agreed

that the three level role adjustment was appropriate in this case as opposed to the

four” as stated in the PSI.




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      The district court then confirmed that the “adjusted offense level, total

offense level becomes a thirty-eight,” and that the advisory guidelines range was

235 to 293 months, and the defense counsel agreed to that statement too. While

the district court did not do the calculations expressly, the total offense level of 38

represented a drug quantity base offense level of 36, a three-level role increase, a

two-level increase for involving a minor in the offense and a three-level reduction

for acceptance of responsibility.

      When the district court asked whether there was “any objection to those

findings by the Court,” defense counsel responded, “No, sir. We have agreed on

those.” The district court stated that it therefore “adopt[ed] the presentence

[report], its other findings and conclusions as well as those that I have just made.”

      The district court then heard arguments as to the appropriate sentence.

Perez-Leal argued for a downward variance from the 235-to-293-month range

based on a variety of factors. The district court granted her request, and imposed a

216-month sentence.

      The district court asked whether the parties had any objections as to its

findings, conclusions and manner of imposing the sentence. Perez-Leal responded:

“Not with regard to those things that you mentioned, judge. But we object to the

Court’s actual sentence and submit that it should be much lower and that’s all.”




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      The district court prepared a written statement of reasons, attached to the

judgment. The statement of reasons stated, inter alia, that the district court (1)

adopted the PSI with changes because the government and Perez-Leal agreed that

the firearm enhancement did not apply and that Perez-Leal’s role warranted only a

three-level enhancement, rather than the four-level enhancement in the PSI; and (2)

found that Perez-Leal “withdrew her objection to the drug amounts” and “her

objection as to involving an individual under 18 years of age.”

                                  II. DISCUSSION

      On appeal, Perez-Leal argues that the district court erred because it did not

resolve and rule on her written objection to the PSI’s drug quantity, as required by

Federal Rule of Criminal Procedure 32, and make an independent assessment of

the relevant conduct that should be attributed to her. The government argues that

Perez-Leal abandoned her objection to drug quantity at sentencing and thus the

district court did not erroneously fail to rule on her objection.

A.    Withdrawal of Drug Quantity Objection

      Prior to the sentencing, Perez-Leal raised numerous written objections to the

PSI, including an objection to the 120-kilogram amount in paragraph 26. At the

sentencing hearing, however, she affirmatively represented to the district court: (1)

that she and the government had agreed to drop the two-level firearm enhancement

and to lower the role-enhancement to three levels; (2) that, with these changes, her


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adjusted offense level was 38; and (3) that her applicable advisory guidelines range

was 235 to 293 months.

      As Perez-Leal concedes, these calculations, to which she agreed, “assume[ ]

a drug amount and base offense level based on 120 [kilograms] of cocaine.” Thus,

Perez-Leal withdrew her objection to the 120-kilogram amount in paragraph 26 as

part of an agreement with the government, as the district court’s subsequent

statement of reasons indicates. See United States v. Horsfall, 552 F.3d 1275,

1283-84 (11th Cir. 2008) (stating that a defendant’s withdrawal of a sentencing

objection generally precludes appellate review of the objection for plain error).

B.    Rule 32 Violation

      However, even if Perez-Leal did not affirmatively withdraw her written

objection to paragraph 26, Perez-Leal’s appeal still fails.

      Under Rule 32, when the defendant objects to a factual statement in the PSI,

the district court must “rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B); see also United

States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). On the other hand, the

district court “may accept any undisputed portion of the presentence report as a

finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).




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      We first note the district court adopted the findings in the PSI and thereby

did implicitly overrule Perez-Leal’s objection to the drug quantity in paragraph 26.

      However, to the extent the district court failed to rule on Perez-Leal’s

written objection to drug quantity, the separate problem for Perez-Leal is that, at

the end of the sentencing hearing, she did not complain about, or object to, the

district court’s not ruling on her drug quantity objection. Specifically, when the

district court asked whether there were any objections to its findings, conclusions

or the manner in which it had imposed the sentence, defense counsel said there

were no objections to the things mentioned, which included the offense level of 38

and the resulting advisory guidelines range of 235 to 293 months. Instead, at the

end of the sentencing hearing, Perez-Leal’s only objection in the district court was

to the length of the 216-month sentence. All this is to say, Perez-Leal is raising for

the first time on appeal the claim that the district court failed to rule on her drug

quantity objection.

      “When sentence objections are raised for the first time on appeal, we

consider them under the plain error doctrine to avoid manifest injustice.” United

States v. Garrison, 133 F.3d 831, 848 (11th Cir. 1998) (quotation marks omitted).

To establish plain error, the defendant must show that “(1) an error occurred, (2)

the error was plain, (3) the error affected substantial rights in that it was prejudicial

and not harmless, and (4) the error seriously affected the fairness, integrity, or


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public reputation of a judicial proceeding.” United States v. Perez, 661 F.3d 568,

583 (11th Cir. 2011) (involving a Rule 32 violation claim). To show that a

sentencing error “affected substantial rights,” the defendant must show that but for

the error, there was “a reasonable probability of a lesser sentence.” See United

States v. Underwood, 446 F.3d 1340, 1343-44 (11th Cir. 2006).

       At a minimum, Perez-Leal has not shown that the district court’s failure to

resolve the objection to paragraph 26 affected her substantial rights. As to drug

quantity, Perez-Leal objected to only paragraph 26 of the PSI, which stated the

total amount of cocaine—120 kilograms—involved in the drug conspiracy. Other

undisputed facts in the PSI, however, established that: (1) two of Perez-Leal’s drug

couriers, Salazar and Covarrubias, made multiple trips to Jimenez in Foley,

Alabama, and in total Jimenez received about 31 kilograms of cocaine from Perez-

Leal; and (2) another of Perez-Leal’s drug couriers, Lupo-Angulo, picked up 10 to

20 kilograms of cocaine from Perez-Leal and her husband on 10 to 15 occasions,

for a total of at least 100 kilograms. Perez-Leal did not dispute these facts at the

sentencing hearing. 2



       2
        Perez-Leal never disputed the admissions of Salazar, Covarrubias, Jimenez and Lupo-
Angulo that they made the trips or the amounts of cocaine they said were delivered. Perez-
Leal’s written objections disputed only the PSI’s characterization of these men as working for
her and instead claimed that she was in buyer-seller relationships with them. These factual
objections were a corollary to her objection to the four-level leader-role enhancement and, thus,
were necessarily withdrawn at sentencing when Perez-Leal agreed to the three-level role
enhancement for supervising or managing these men.
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      In other words, Perez-Leal admitted that drug couriers she supervised

transported at least 131 kilograms of cocaine on her behalf. See United States v.

Beckles, 565 F.3d 832, 844 (11th Cir. 2009) (stating that the “failure to object to

allegations of fact in a PSI admits those facts for sentencing purposes and

precludes the argument that there was error in them” (internal quotation marks

omitted)). Because Perez-Leal did not dispute these PSI facts, the district court

was entitled to rely on them. See United States v. Hedges, 175 F.3d 1312, 1315

(11th Cir. 1999); see also Fed. R. Crim. P. 32(i)(3)(A). Likewise, these undisputed

facts were sufficient to carry the government’s burden to establish the disputed

120-kilogram amount in paragraph 26 by a preponderance of the evidence.

      Under these particular circumstances, Perez-Leal has not shown a reasonable

probability that she would have received a lower sentence if the district court had

expressly ruled on her written objection to paragraph 26. Thus, any alleged failure

to strictly comply with Rule 32(i)(3)(B) as to paragraph 26 was not plain error.

      AFFIRMED.




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