United States v. Guillermo Balleza

Case: 09-10131 Document: 00511186907 Page: 1 Date Filed: 07/27/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 27, 2010

No. 09-10131

Summary Calendar Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

HECTOR GUILLERMO BALLEZA, also known as Pancho, also known as Yiyo

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:

Hector Guillermo Balleza (Balleza) appeals the sentence imposed following

his guilty plea conviction for conspiracy to possess with intent to distribute and

to distribute five kilograms or more of cocaine and conspiracy to commit money

laundering.1 Balleza argues that the district court clearly erred by denying him

1

We take this opportunity to clarify this court’s jurisprudence on whether

an overt act in furtherance of the conspiracy is an element of the offense of

conspiracy to launder money in violation of 18 U.S.C. § 1956(h). It is not.

Overruling United States v. Wilson, 249 F.3d 366, 379 (5th Cir. 2001), the

Supreme Court held that an overt act is not an element of conspiracy to launder

money. Whitfield v. United States, 543 U.S. 209, 214 (2005). After Whitfield,

this court mistakenly recited in dicta that an overt act is an element of the

offense. United States v. Bueno, 585 F.3d 847, 850 (5th Cir. 2009); United States

v. Armstrong, 550 F.3d 382, 403 (5th Cir. 2008).

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No. 09-10131

a reduction for his having a minor role in the offense and that the district court

erred by not finding that he had a criminal history category of I. Balleza also

contends that his 240-month sentence was substantively unreasonable.

Balleza argues that the district court clearly erred by refusing to apply a

two-level reduction for his being a minor participant in the offense because he

did not lead, recruit, or direct any individual in the criminal offense and because

he merely worked under the direction of others. He maintains that the reduction

was appropriate because he did not participate in all of the activity alleged in the

presentence report (PSR).

The information in the PSR showed that Balleza transported loads of

narcotics, counted drug proceeds, conducted counter surveillance during the

unloading of large shipments of cocaine, turned over drug proceeds to a courier,

personally distributed five kilograms of cocaine, and helped direct the activities

of one other person during the conspiracy. While Balleza stated in an affidavit

that he did not conduct counter surveillance during the unloading of the large

shipments of cocaine, the district court rejected Balleza’s self-serving affidavit

by rejecting his related objection to the PSR, and the district court was entitled

to reject Balleza’s self-serving denials based upon the information contained in

the PSR. See United States v. Bates, No. 95-50111, 1995 WL 581888 at *8 (5th

Cir. Sept. 21, 1995) (unpublished); see also 5 TH C IR . R. 47.5.3 (unpublished

opinions issued prior to January 1, 1996, are precedential). Given Balleza’s

extensive involvement in the drug conspiracy, the district court’s determination

that Balleza was not a minor participant in the offense was not implausible in

light of the record as a whole, and, therefore, was not clearly erroneous. See

United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005).

In conformity with Whitfield, we recognize that an overt act is not an

element of the offense of conspiracy to launder money.

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No. 09-10131

The district court partially granted Balleza’s objection to his criminal

history category, ruling that Balleza should be considered to have a criminal

history category of one and a half and sentencing Balleza to a sentence within

the guidelines sentence range applicable if Balleza’s criminal history category

were I. Nevertheless, Balleza argues that the district court erred because it did

not fully grant his objection to his criminal history category. He maintains that

both of his prior convictions were relevant conduct to the present offense and

should not have resulted in any criminal history points, placing him in criminal

history category I. He maintains that the district court’s refusal to fully grant

his objection harmed him because, even though the district court sentenced him

within the guidelines range for a defendant with his offense level and a criminal

history category of I, he was not considered eligible for a safety valve reduction.

Balleza’s prior conviction for possession of cocaine was for conduct

committed prior to the beginning of the present drug conspiracy. Balleza

presented no evidence that the cocaine involved in the prior conviction was

derived from the present drug conspiracy. Balleza’s other prior conviction was

for possession of Alprazolam and for failure to identify himself as a fugitive from

justice, and there is no indication that the present drug conspiracy included any

drug other than cocaine. Accordingly, the probation officer correctly determined

that Balleza’s prior convictions each counted for one criminal history point,

giving Balleza a criminal history category of II. See United States v. Garza, No.

94-41339, 1995 WL 534842 at *5 (5th Cir. Aug. 14, 1995) (unpublished); see also

5 TH C IR. R. 47.5.3. As the district court ruled that Balleza’s criminal history

category was the non-existent one and a half, any error committed by the district

court in calculating Balleza’s criminal history category was in Balleza’s favor

and was, therefore, harmless to Balleza. See United States v. Morales-Sosa, 191

F.3d 586, 587-88 (5th Cir. 1999) (holding that error that does not affect the

defendant’s substantial rights is harmless).

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Balleza asserts that his sentence was substantively unreasonable because

it was substantially greater than the sentences of co-defendants who were more

culpable than he was. Balleza argues that his sentence was unreasonably high

because his criminal history category was incorrectly determined to be II and

because he received a two-level enhancement for being convicted of money

laundering. He maintains that the long sentence he received was unwarranted

because he exercised no discretion in his activities and merely followed orders

given by co-defendants via telephone. He asserts that he was only 18 years old

at the time of the offense and that nothing in his background or role in the

offense suggests that he deserved the sentence he received.

One of the § 3553(a) factors requires the district court to consider “the

need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” § 3553(a)(6). However,

this disparity factor requires the district court to avoid only unwarranted

disparities between similarly situated defendants nationwide, and it does not

require the district court to avoid sentencing disparities between co-defendants

who might not be similarly situated. United States v. Candia, 454 F.3d 468, 476

(5th Cir. 2006).

While Balleza argues that two co-defendants, Jose Silva and Patrick

Hooper, were similarly situated or more culpable co-defendants who received far

lesser sentences, Silva was convicted of the money laundering conspiracy charge

only and Hooper was convicted of the drug conspiracy charge only, unlike

Balleza who pleaded guilty to both charges. While Balleza asserts that the two-

level enhancement for his being convicted of the money laundering conspiracy

created an unwarranted sentence disparity, this is incorrect as the sentence

disparity factor requires only that unwarranted sentence disparities not be

created between defendants “who have been found guilty of similar conduct.” 18

U.S.C. § 3553(a)(6). At sentencing, Balleza’s counsel acknowledged that Silva

or Hooper likely received a downward departure based on a government motion,

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presumably referring to a departure for substantial assistance. Balleza has not

shown that he was similarly situated to Silva or Hooper, and sentence

disparities between co-defendants who were convicted of different charges or

who received departures for substantial assistance are not unwarranted

disparities under § 3553(a)(6). See Candia, 454 F.3d at 476.

Information presented at sentencing showed that a third co-defendant,

Aldo Saenz, like Balleza, pleaded guilty to both the drug conspiracy charge and

the money laundering conspiracy charge without a plea agreement. The district

court sentenced Balleza to 240 months of imprisonment, 22 months less than

Saenz’s sentence of 262 months of imprisonment, and, in passing sentence, it

stated that Balleza’s sentence was “in keeping with the horizontal equity among

the various defendants.” Thus, the record shows that the district court sought

to avoid an unwarranted sentence disparity between Balleza and Saenz, and it

imposed a sentence that it believed was appropriate based upon Saenz’s sentence

and the other § 3553(a) factors. Balleza has not shown that the district court

abused its discretion by creating an unwarranted disparity between his sentence

and the sentences of his co-defendants. See Candia, 454 F.3d at 476-77.

Balleza’s assertions that his sentence was unreasonable because his

criminal history category was incorrectly calculated, because of his youth, and

because nothing in his background or role in the offense justified a 240-month

sentence are also without merit. As shown above, any error in the calculation

of Balleza’s criminal history category was in Balleza’s favor. While Balleza was

relatively young at the time he began the present offenses, age is generally not

a relevant factor in sentencing, and Balleza has not shown why his sentence was

unreasonable simply because of his relative youth. See United States v.

Simmons, 470 F.3d 1115, 1130-31 (5th Cir. 2006). Finally, while Balleza

maintains that his background and role in the offense did not justify the

sentence he received, the facts set forth in the PSR that were adopted by the

district court showed that Balleza significantly participated in a major drug

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conspiracy for a substantial amount of time. Given the facts of the case and the

deference given to district court sentencing decisions, Balleza has not shown that

the district court abused its discretion or that the sentence was unreasonable.

See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 384-87 (5th Cir. 2008).

AFFIRMED.

6