United States v. Ismael Rico
2017 U.S. App. LEXIS 13097
| 5th Cir. | 2017Background
- Ismael Rico pleaded guilty to conspiracy to possess with intent to distribute methamphetamine and faced a Guidelines base offense level of 38 adjusted by several two-level enhancements and a claimed 3-level acceptance reduction.
- PSR applied: +2 for firearm involvement, +2 under U.S.S.G. § 2D1.1(b)(5) for imported methamphetamine, and +2 under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises; after a 3-level acceptance reduction the PSR totaled offense level 41 (Guidelines range 360 months to life, capped by 40-year statutory maximum to 360–480 months).
- At sentencing the district court denied the acceptance-of-responsibility reduction, adopted the PSR enhancements, and sentenced Rico to 400 months imprisonment and 4 years supervised release.
- On appeal Rico challenged (1) the importation enhancement as unsupported by the PSR, (2) the sufficiency/reliability of PSR statements supporting the maintaining-a-premises enhancement, and (3) the district court’s denial of the § 3E1.1 acceptance reduction.
- The Fifth Circuit reviewed Guideline interpretation de novo and factual findings for clear error, and affirmed on all contested points.
Issues
| Issue | Plaintiff's Argument (Rico) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Importation enhancement under U.S.S.G. § 2D1.1(b)(5) | PSR lacks reliable evidence that methamphetamine originated in Mexico; enhancement therefore unsupported | Enhancement is proper under controlling Fifth Circuit law; Rico waived the factual objection at sentencing | Waived by Rico at sentencing; in any event Fifth Circuit precedent imposes no scienter requirement so enhancement applies |
| Maintaining-a-premises enhancement under U.S.S.G. § 2D1.1(b)(12) | PSR statements are bald and insufficiently attributed, so unreliable for sentencing finding | PSR and addendum attribute storage/use of mother's home to coconspirator statements (Godinez) and agent corroboration; such sources are reasonably reliable | Information was sufficiently reliable (coconspirator statements and agent clarification) to support the enhancement; affirmed |
| Acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1 | Denial of 3-point reduction was erroneous and affected Guidelines range | Any error was harmless because district court considered both ranges and stated it would impose the same 400-month sentence regardless | Harmless error: district court considered the alternate range and would have imposed the identical sentence; affirmed |
Key Cases Cited
- United States v. Serfass, 684 F.3d 548 (5th Cir. 2012) (standard of review and importation enhancement precedent)
- United States v. Musquiz, 45 F.3d 927 (5th Cir. 1995) (waiver vs. forfeiture principles at sentencing)
- United States v. Narviz-Guerra, 148 F.3d 530 (5th Cir. 1998) (PSR bald assertions lacking reliability)
- United States v. Malone, 828 F.3d 331 (5th Cir.) (reasonably reliable standard for PSR is not onerous)
- United States v. Zuniga, 720 F.3d 587 (5th Cir. 2013) (coconspirator statements can be sufficiently reliable for PSR-based findings)
- United States v. Duhon, 541 F.3d 391 (5th Cir. 2008) (harmless-error framework where court considered correct Guidelines range)
- United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008) (same; district court may impose same sentence despite Guideline miscalculation)
- United States v. Richardson, 676 F.3d 491 (5th Cir. 2012) (harmless error requires court considered correct range and would have imposed same sentence)