United States v. Elias Barrera, Jr.
697 F. App'x 373
5th Cir.2017Background
- Elias Samora Barrera, Jr. pleaded guilty to possession with intent to distribute methamphetamine and was sentenced with a two-level enhancement under U.S.S.G. § 2D1.1(b)(2) for making a credible threat to use violence.
- Barrera argued on appeal that threats can be counted only if made "during" the commission of the offense, not as part of broader relevant conduct.
- He did not raise that precise argument in the district court, so the panel reviewed for plain error.
- The presentence report described Barrera as the sole Texas Mexican Mafia (TMM) member in the area who collected a "dime" (a tax) from non-TMM dealers—collection that entailed implied threats of violent enforcement.
- The report also recounted a specific death threat Barrera made to an informant; Barrera presented no competent rebuttal evidence challenging the report’s reliability.
- The district court found Barrera’s threats credible and applied the two-level enhancement; the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether threats must occur "during" the offense to trigger § 2D1.1(b)(2) | Barrera: threats must be made during the commission of the crime itself | Government: relevant-conduct rules apply; threats during related conduct may count | No plain error; "during" is not in § 2D1.1 and § 1B1.3 applies; argument not clearly established law |
| Standard of review for unpreserved legal claim | Barrera: urged narrower reading of guideline (but unpreserved) | Govt: appellate review limited to plain error | Court applied plain-error review and required clear or obvious legal error; none shown |
| Sufficiency of factual finding that threats were credible | Barrera: challenged credibility/speculated target didn’t believe threat | Government/district court: relied on PSR, informant report, and enforcement practice | Finding plausible given record; reviewed for clear error and affirmed |
| Admissibility/reliability of PSR facts for sentencing | Barrera: contended some PSR assertions were unreliable | Government: PSR facts may be relied upon absent competent rebuttal | Barrera offered no competent rebuttal; court permissibly relied on PSR facts |
Key Cases Cited
- United States v. Neal, 578 F.3d 270 (5th Cir. 2009) (preservation requirement for appellate review of sentencing issues)
- Puckett v. United States, 556 U.S. 129 (U.S. 2009) (plain-error standard requires clear or obvious legal error)
- United States v. Rodriguez-Parra, 581 F.3d 227 (5th Cir. 2009) (no clear or obvious error where resolution depends on parsing guidelines and precedent)
- United States v. Betancourt, 422 F.3d 240 (5th Cir. 2005) (standard for reviewing factual findings about threats at sentencing)
- United States v. Caldwell, 448 F.3d 287 (5th Cir. 2006) (review of district court’s reasonable inferences at sentencing)
- United States v. Harris, 702 F.3d 226 (5th Cir. 2012) (district court may rely on PSR facts absent competent rebuttal)