United States v. Gerardo Preciado-Delacruz
2015 U.S. App. LEXIS 16423
| 5th Cir. | 2015Background
- DEA stakeout of Cesar Loma's Fort Worth house in Oct. 2013; Preciado-Delacruz and Lopez-Maya observed with marijuana and money; later search of house recovered gun and more marijuana; Preciado-Delacruz's fingerprints found on packaging.
- Preciado-Delacruz pleaded guilty to possession with intent to distribute marihuana under 21 U.S.C. § 841(a)(1).
- PSR issued applying Guidelines: base level 18, +2 for weapon, history I; PSR advised no acceptance-of-responsibility reduction under §3E1.1.
- District court adopted PSR findings, denied acceptance of responsibility, and then imposed an upward, above-guidelines sentence after explaining factors under 18 U.S.C. § 3553(a); court misstated two facts about illegal reentry history.
- Defense objected at sentencing; court imposed 60-month sentence (statutory max) and two years' supervised release; on appeal, issues include Fifth Amendment silence and substantive reasonableness; standard of review discussed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May silence about relevant conduct justify §3E1.1 denial | Preciado-Delacruz | Preciado-Delacruz | Permissible inference under Mourning; Fifth Amendment not violated. |
| Are misstatements at sentencing grounds to reverse | Preciado-Delacruz | District court's facts corrected on appeal | No plain error; no reversal. |
| Is the above-guidelines sentence substantively reasonable | Preciado-Delacruz; sentence unreasonable | Not substantively unreasonable | Not plainly erroneous; affirmed. |
Key Cases Cited
- Mourning, 914 F.2d 699 (5th Cir. 1990) (rewarding remorse/cooperation not coercion; permissible inference from silence)
- Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (abuse-of-discretion review for sentences; standard clarified)
- United States v. Neal, 578 F.3d 270 (5th Cir. 2009) (preservation and standard for factual objections at sentencing)
- United States v. Dunigan, 555 F.3d 501 (5th Cir. 2009) (plain-error review for sentencing challenges)
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) (preservation of objections; standard for appeal)