UNITED STATES of America, Plaintiff-Appellee v. Francisco MEZA-ROJAS, also known as Chacho, also known as El Ocho, Defendant-Appellant.
No. 11-40015
United States Court of Appeals, Fifth Circuit.
July 3, 2012.
480 F. Appx. 784
Summary Calendar.
“For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle.” United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). It would not have been clearly erroneous for the district court to have found that Castro traveled by a sign notifying drivers of the left-lane travel restriction at highway mile marker 321. See United States v. Jones, 234 F.3d 234, 239 (5th Cir.2000). Since Castro traveled by a sign notifying drivers of the left-lane travel restriction, the arresting officer had reasonable suspicion to stop Castro for traveling in the left lane without passing. See Green v. State, 93 S.W.3d 541, 546 (Tex. App.2002) (citing
Castro nonetheless argues that driving in the left lane without passing is not a traffic violation if there is no sign prohibiting the conduct at the time and place of the alleged violation. The sign that Castro traveled by was 24 miles from the location of the alleged violation. Castro has failed to carry his burden on plain error review of demonstrating that the Texas Transportation Code requires the traffic control device to be in direct proximity to the loсation of the alleged violation. Cf.
The judgment of the district court is AFFIRMED.
Francisco Meza-Rojas, Lompoc, CA, pro se.
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
Francisco Meza-Rojas pleaded guilty to conspiracy to possess, with intent to distribute, 169 kilograms of cocaine and 4,736 kilograms of marijuana. The district court sentenced him to 324-months’ imprisonment and five-years’ supervised release. Meza, proceeding pro se, challenges on numerous grounds both his conviction and sentence.
Meza contends the district court erred when accepting his guilty plea by: failing to admonish him regarding the nature of the charge against him; taking multiple pleas in the same proceeding; failing to advise him fully on the consequences of supervised release; and wrongly advising him that he was subject to a term of supervised relief for life. No objection having been made in district court to any of these claimed errors, reviеw is only for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). To show reversible plain error, Meza must show a forfeited, plain (clear or obvious) error that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he makes suсh a showing, our court has the discretion to correct the plain error, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceeding. Id. Meza has not shown that the district court committed any errors in accepting his guilty plea. And even if he had, Meza has not made the requisite showing, under plain-error review, that it was reasonably probable that, but for any error, he would not have pleaded guilty. United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir.2006).
Meza also maintains the Government breached the plea agreement by: introducing information that raised his base offense level above 32; not recommending a sentence reduction for his cooperation; and not allowing him additional opportunities to cooperate. Because Meza did not raise this breach-of-plea-agreement issue in district court, review is again only for plain error. E.g., United States v. Munoz, 408 F.3d 222, 226 (5th Cir.2005). Meza has the burden of demonstrating, by a preponderance of the evidence, the underlying facts that establish the breach. E.g., United States v. Roberts, 624 F.3d 241, 246 (5th Cir.2010). Meza cannot meet this burden, however, because he has not shown that the Government made any of the promises he allеges were breached.
Meza claims the district court erred in accepting his guilty plea because there was an insufficient factual basis to establish that he conspired to pоssess the controlled substances with the intent to distribute them. The elements of possession with intent to distribute a controlled substance are: (1) knowledge; (2) possession of a controlled substance; and (3) intent to distribute. E.g., United States v. Ortega Reyna, 148 F.3d 540, 543-44 (5th Cir.1998). Given that the controlled substances were the equivalent of thousands of pounds of marijuana, intent to distribute may be inferred. E.g., United States v. Guanesрen-Portillo, 514 F.3d 393, 396-97 (5th Cir.2008).
Meza contends, on several grounds, that his sentence of 324-months’ imprisonment was procedurally flawed and substantively unreasonable. Pursuant to Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the first inquiry is whether the district сourt committed any procedural errors. If the district court‘s
Meza asserts the district court erred in holding him responsible for an equivalent amount of 38,536 kilograms of marijuana. Along that line, Meza contends the district court erred by not resolving his objections to the presentence investigation report (PSR) and by adopting the facts contained in it. The district court‘s findings of fact аt sentencing are reviewed under the clearly-erroneous standard. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir.2000). It may rely on a PSR when making factual determinations and “may adopt the facts contained in the PSR without further inquiry if the facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence“. United States v. Cooper, 274 F.3d 230, 239 (5th Cir.2001). “The defendant has the burden of showing that the information relied on by the district court in the PSR is materially unreliable.” United States v. Ford, 558 F.3d 371, 377 (5th Cir.2009) (internal quotation marks omitted). Meza has not shown that this factual finding failed to resolve the disputed issues or was clearly erroneous.
Meza maintains the district court erred in аpplying the four-level enhancement for his leadership role in the offense. Review is for clear error. Lyckman, 235 F.3d at 237. Under Sentencing Guideline § 3B1.1(a), defendant‘s offense level should be increasеd by four levels if he “was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive“. Meza has not shown that the district court clеarly erred in determining Meza satisfied these requirements for being a leader of the extensive criminal activity. See United States v. Curtis, 635 F.3d 704, 720 (5th Cir.), cert. denied, — U.S. —, 132 S.Ct. 191, 181 L.Ed.2d 99 (2011).
Meza contends the district court erred in calculating his total offensе level when it subtracted the three-level, acceptance-of-responsibility reduction from an adjusted total offense level of 44, rather than 43, the highest total offense level allowed under the advisory Sentencing Guidelines. Meza did not raise this issue in district court. In United States v. Arreola-Albarran, 210 Fed.Appx. 441, 443 (5th Cir.2006), our court found that plain-error review was appropriate for this issue when not raised in district court. Our court then found that the district court‘s method of calculation was not plain error. Id.; see also United States v. Wood, 48 F.3d 530, 1995 WL 84100, **6-7 (5th Cir. 8 Feb. 1995).
Meza claims his sentence of 324-months’ imprisonment was substantively unreasonable because it failed to account adequately for disparity in the sentences given his codefendants. When, as here, the district court imposes a sentence within a properly calculated guidelines range, the sentence is entitled to a presumption of reasonableness. E.g., United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). The district court heard and specifically considered Meza‘s sentencing-disparity contention, but concluded that a sentence within the recommended Guidelines range was appropriate. Meza has not shown that the district court failed to give proper weight to his contention. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009).
Lastly, and notwithstanding his specific agreement to a two-level, obstruction-of-justice increase to his offense level, Meza assеrts that the district court erred by increasing his punishment for such conduct. He relies on an extradition treaty between the United States and Mexico. (The obstruction-of-justice enhancement
AFFIRMED.