     Case: 16-30057        Document: 00513929736       Page: 1    Date Filed: 03/28/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 16-30057                                FILED
                                                                            March 28, 2017

UNITED STATES OF AMERICA,                                                    Lyle W. Cayce
                                                                                  Clerk
           Plaintiff - Appellee

v.

MARIO BARAZZA-CORRAL,

           Defendant - Appellant



                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 2:13-CR-315-1


Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges:
PER CURIAM:*
       Mario Barazza-Corral pleaded guilty with the benefit of a plea
agreement to one count of aiding and abetting the distribution of five grams or
more of methamphetamine. The presentence report (PSR) assessed a base
offense level of 32. After a two-level aggravating role adjustment, U.S.S.G.
§ 3B1.1(c), and a three-level reduction for his acceptance of responsibility,
U.S.S.G. § 3E1.1, Barazza-Corral had a total offense level of 31. That score,
combined with his criminal history category of I, produced an advisory


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30057
guidelines range of imprisonment for 108 to 135 months. At sentencing, the
district court imposed a within-guidelines sentence of 108 months of
imprisonment. Barazza-Corral did not object to the sentence imposed but
timely filed a notice of appeal. On appeal, Barazza-Corral challenges the
application of the aggravating role adjustment under § 3B1.1(c), and argues
that he should have instead received a mitigating role adjustment.
      Even though the Guidelines are advisory in light of United States v.
Booker, 543 U.S. 220 (2005), the district court must still properly calculate the
applicable guideline range before imposing a sentence. Gall v. United States,
552 U.S. 38, 51 (2007). As Barazza-Corral concedes, review here is for plain
error in light of his failure to object below. See United States v. Murray, 648
F.3d 251, 256 (5th Cir. 2011). To prevail he must establish a clear or obvious
error that affected his substantial rights, and this court may exercise its
discretion to correct plain error only if it seriously affected the fairness,
integrity, or public reputation of the judicial proceeding. See Puckett v. United
States, 556 U.S. 129, 135 (2009).
      A defendant qualifies for a two-level increase in his offense level if he
was “an organizer, leader, manager or supervisor of one or more other
participants.” See § 3B1.1(c) & cmt. n.4. The PSR described telephone
intercepts during which Barazza-Corral and his brother (another participant
in the drug trafficking organization) “would frequently discuss the distribution
of drugs,” and “[his brother] would tell Barazza-Corral how much crystal
methamphetamine was left to sell, and how much drug proceeds would be sent
back to Barazza-Corral.” Based on this evidence, the probation officer
recommended finding that Barazza-Corral was a “manager/organizer in the
drug trafficking organization” and therefore recommended applying the two-
level adjustment. There were no objections to the PSR. At the sentencing
hearing, the district court recited the PSR’s Guidelines calculation, and the
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                                       No. 16-30057
statement of reasons reflects the same offense level, criminal history category,
and advisory range recommended by the PSR. In this context, the district
court was entitled to accept the factual assertions in the PSR as the basis for
its calculation of the Guidelines and imposed sentence. See United States v.
Ochoa-Gomez, 777 F.3d 278, 282 (5th Cir. 2015) (findings of fact may be based
on information contained in the PSR).
       Barazza-Corral now argues that the record does not support the district
court’s determination that he was a “manager/organizer.” 1 We disagree. In
reviewing for plain error, “we uphold offense-level enhancements ‘if the record
as a whole demonstrates that the adjustments did not result in a miscarriage
of justice.’” United States v. Huerta, 182 F.3d 361, 366 (5th Cir. 1999) (quoting
United States v. Pattan, 931 F.2d 1035, 1043 (5th Cir. 1991)). In addition to the
findings specifically relied on by the PSR in support of the aggravating role
adjustment, the PSR also established that Barazza-Corral was a “main
supplier” of methamphetamines, and “was responsible for transporting and/or
arranging for the transportation of methamphetamine.” On at least one
occasion,     Barazza-Corral         used      another       individual      to     transport
methamphetamines from Texas to Louisiana and directly followed the
individual during the trip. A Confidential Informant told investigators that
one of the co-defendants “work[ed] for” Barazza-Corral. And, in one telephone


       1 Barazza-Corral also argues that the district court erred by applying the § 3B1.1(c)
adjustment because the criminal activity involved five or more participants, and § 3B1.1(c)
applies only where the offense involved fewer than five participants. This argument fails.
Even if the district court erred by applying § 3B1.1(c), such error benefited Barazza-Corral
and thus did not affect his substantial rights. If the district court had applied § 3B1.1(a) or
(b)—which adjust for aggravating roles where the “the criminal activity involved five or more
participants or was otherwise extensive”—Barazza-Corral would have qualified for a three-
or four-level increase rather than the two-level increase he actually received. See United
States v. Rivera, 784 F.3d 1012, 1018 (5th Cir. 2015) (“A sentencing error affects a defendant’s
substantial rights if he can show a reasonable probability that, but for the district court’s
error, he would have received a lesser sentence.”) (internal quotation marks, alteration, and
citation omitted; emphasis added).
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                                    No. 16-30057
intercept during which Barazza-Corral and his brother discussed that same co-
defendant’s failure to pay, Barazza-Corral told his brother to “put [the co-
defendant] back to work” and that “they need to break [the co-defendant’s]
fingers so that he won’t take what isn’t his.” Each of these factors weighs in
favor of a determination that Barazza-Corral’s role in the drug ring had risen
to the level of a manager or organizer.
      For these reasons, we conclude that the district court did not plainly err
by applying the § 3B1.1(c) adjustment. 2 See Puckett, 556 U.S. at 135.
      AFFIRMED.




      2 Because the district court did not plainly err by applying the aggravating role
adjustment, Barazza-Corral’s argument that he qualified for a two-level mitigating role
adjustment under U.S.S.G. § 3B1.2 must fail.
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