The opinion
Case: 13-41019 Document: 00512921794 Page: 1 Date Filed: 01/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-41019
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 30, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JORGE MANUEL TOVAR MORENO,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-183-2
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Jorge Manuel Tovar Moreno appeals his guilty plea conviction and
sentence for conspiracy to distribute and to possess with intent to distribute
methamphetamine.
Tovar Moreno argues that the magistrate judge committed reversible
plain error by misinforming him of the maximum term of supervised release
he faced. Because he failed to object to the plea colloquy below, Tovar Moreno’s
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41019 Document: 00512921794 Page: 2 Date Filed: 01/30/2015
No. 13-41019
due process argument regarding the erroneous advisement during the plea
colloquy is reviewed for plain error. See United States v. Vonn, 535 U.S. 55, 59
(2002). He must show a forfeited error that is clear or obvious that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
Tovar Moreno makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
Due to the operation of the safety valve provisions within the Guidelines,
Tovar Moreno faced a five-year maximum term of supervised release.
See U.S.S.G. § 5C1.2, comment. (n.9); U.S.S.G. § 5D1.2(a) & comment. (n.2).
This is consistent with the information Tovar Moreno was given by the
magistrate judge during rearraignment. Accordingly, Tovar Moreno has not
demonstrated that the magistrate judge committed a clear or obvious error
that affected his substantial rights. See Puckett, 556 U.S. at 135.
After United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for procedural error and substantive reasonableness under an abuse
of discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th
Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). The district
court’s application of the Guidelines is reviewed de novo, and its fact findings
are reviewed for clear error. United States v. Trujillo, 502 F.3d 353, 356 (5th
Cir. 2007).
Tovar Moreno argues that the district court clearly erred by finding that
he was responsible for conspiring to distribute over 15 kilograms of
methamphetamine. The district court’s determination of drug quantity for
purposes of sentencing is a factual finding that will be upheld unless it is not
plausible in light of the entire record. United States v. Alaniz, 726 F.3d 586,
618 (5th Cir. 2013).
2
Case: 13-41019 Document: 00512921794 Page: 3 Date Filed: 01/30/2015
No. 13-41019
The district court overruled Tovar Moreno’s objection to the drug
quantity determination contained in the presentence report based on the fact
that Tovar Moreno admitted, as part of his factual basis, that the conspiracy
involved 50 kilograms of methamphetamine. The district court’s finding that
the offense involved at least 15 kilograms or more of methamphetamine is
plausible in light of the entire record. See Alaniz, 726 F.3d at 618. Accordingly,
that finding is not clearly erroneous. Id.
Tovar Moreno also argues that the district court clearly erred by refusing
to grant an offense level reduction based on his role in the offense. Whether a
defendant is a minor or minimal participant is a factual determination
reviewed for clear error. See Alaniz, 726 F.3d at 626; United States v.
Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005). “It is not enough that a
defendant does less than other participants; in order to qualify as a minor
participant, a defendant must have been peripheral to the advancement of the
illicit activity.” Villanueva, 408 F.3d at 204 (internal quotation marks and
citation omitted).
The record belies Tovar Moreno’s contention that his role in the offense
was merely that of a chauffeur or courier. Furthermore, even if Tovar Moreno’s
characterization of his conduct were accurate, he is not entitled to relief. See
United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). The record
reflects that Tovar Moreno admitted his knowledge of the scope of the
conspiracy and performed tasks that were integral to the success of the
enterprise. Tovar Moreno has not established that his role in the offense was
peripheral. See Villanueva, 408 F.3d at 204. Accordingly, the district court’s
finding that he was not entitled to a role reduction is not clearly erroneous.
See Alaniz, 726 F.3d at 618.
3
Case: 13-41019 Document: 00512921794 Page: 4 Date Filed: 01/30/2015
No. 13-41019
Tovar Moreno also argues that the district court plainly erred by
applying a two-level adjustment based on a finding that the methamphetamine
was imported. Because Tovar Moreno raises this argument for the first time
on appeal, we review for plain error. See Puckett, 556 U.S. at 135. The
Guidelines provide for a two-level increase in the offense level if the offense
involved the importation of methamphetamine and the defendant is not subject
to a mitigating role adjustment. U.S.S.G. § 2D1.1(b)(5). The adjustment
applies whether or not the defendant had knowledge of the importation.
United States v. Foulks, 747 F.3d 914, 915 (5th Cir.), cert. denied, 135 S. Ct.
219 (2014).
The presentence report indicated that the methamphetamine came from
Mexico. Tovar Moreno neither objected to nor disputed this information.
Accordingly, the district court could rely on the information. See United States
v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013). The information contained in the
presentence report, coupled with counsel’s statements at sentencing, shows
that the record is not devoid of evidence regarding the origin of the
methamphetamine. Tovar Moreno has therefore failed to establish that the
district court committed error, plain or otherwise, by imposing the two-level
adjustment. See Puckett, 556 U.S. at 135.
Finally, Tovar Moreno argues that the case should be remanded for
resentencing in light of Amendment 782 to the Sentencing Guidelines. We
reject this argument. The district court correctly used the Guidelines in effect
at the time of Tovar Moreno’s sentencing. See United States v. Martin, 596
F.3d 284, 286 (5th Cir. 2010).
AFFIRMED.
4