UNITED STATES of America, Plaintiff-Appellee v. Manuel Eduardo PENA, Defendant-Appellant.
No. 12-41356
United States Court of Appeals, Fifth Circuit.
Oct. 9, 2013.
543 Fed. Appx. 453
The district court‘s conclusions were well-supported by the factual basis to which Rojas pleaded guilty and information contained in the PSR, both of which showed that Rojas owned and controlled the bar where the prostitution was occurring. The women and minor girls were systematically smuggled into the United States or supplied by Mexican pimps and coerced under threats of harm to prostitute themselves. Rojas and the other defendants made a minimum of $15,000 per day on Fridays, Saturdays, and Sundays by charging the girls for condoms and the use of rooms for sex. The defendants used an elaborate system of managers to distance themselves from the day-to-day operations of the endeavor, as well as lookouts to detect the presence of law enforcement. The information also showed that Rojas was personally aware that minors were working as prostitutes, tolerated their abuse, approved and controlled whether or not they worked at the bar, and instructed them to get false identification and change their appearance.
Furthermore, Rojas was also a leader or organizer of the criminal offense, and she concedes that she received the same sentence as her co-defendant brother, who operated the bar along with her. The defendants who received lesser sentences largely acted in lesser roles, such as lookouts. See Hernandez, 633 F.3d at 379 (noting that sentencing disparity alone is insufficient to render a sentence substantively unreasonable).
We are satisfied that the district court made an individualized assessment of the case based on all the facts presented. See Gall, 552 U.S. at 50, 128 S.Ct. at 597. Rojas‘s arguments essentially amount to a disagreement with the district court‘s balancing of the sentencing factors, which is insufficient to show that a sentence is unreasonable. See id. at 51, 128 S.Ct. 586 (explaining that appellate courts will not re-weigh the sentencing factors). Rojas has not shown that the district court failed to account for a factor that should have received significant weight, gave significant weight to an irrelevant or improper factor, or committed a clear error of judgment in balancing the sentencing factors when it sentenced her to 192 months instead of life in prison. See Smith, 440 F.3d at 708.
AFFIRMED.
Kimberly S. Keller, Keller Stolarczyk P.L.L.C., Boerne, TX, for Defendant-Appellant.
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
Manuel Eduardo Pena appeals his jury-trial conviction on two counts of making a false statement in firearm-dealer records, in violation of
The first two counts of conviction charged that, on 5 and 19 December 2011, Pena knowingly made a false statement on a form that federal law required the licensed seller, Academy Ltd. # 30, to maintain. On each form, Pena represented that he was the actual buyer of a firearm, when he purchased the firearm instead on behalf of another individual. The third count of conviction charged he knowingly made a materially false statement to FBI Agent Owen, when he told the Agent that he purchased the firearms for himself.
At trial, Pena moved for judgment of acquittal after the Government rested, raising one of the issues on appeal. He failed to do so, however, after he presented evidence. Subsequently, he raised these appellate issues in a timely post-verdict motion for judgment of acquittal. Assuming arguendo that Pena properly preserved his sufficiency-of-the-evidence challenge, the denial of his Rule 29 motion for judgment of acquittal is reviewed de novo. See United States v. Harris, 666 F.3d 905, 907 (5th Cir.2012). The evidence is viewed “in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the evidence established [Pena‘s] guilt beyond a reasonable doubt“. Id.; see also United States v. Thomas, 12 F.3d 1350, 1373 (5th Cir.1994).
“To establish a violation of
For the firearm purchased on 5 December 2011, testimony established: Sergio Gonzalez asked Pena to purchase a firearm for him; Gonzalez could not purchase the firearm himself because he had inadequate documentation; and Gonzalez provided Pena cash for the purchase. Instructions on Form 4473 informed Pena that, under these circumstances, he was not the actual purchaser and therefore should check “No” to whether he was the actual purchaser. Nonetheless, Pena represented he was the actual purchaser of the firearm. Similarly, for the firearm purchased on 19 December 2011, evidence established: Gonzalez requested Pena to purchase the firearm for him; Gonzalez provided cash for the firearm; and Pena falsely stated on Form 4473 that he was the actual buyer.
Pena‘s contention that there was insufficient evidence that he acted with the requisite intent is contradicted by the explicit instructions, warning, and examples provided on Form 4473, as well as the considerable evidence showing Pena purchased the weapons for Gonzalez. In the light of all the evidence, a reasonable juror could find that the evidence established beyond a reasonable doubt
Pena further contends that no statute proscribes making a false statement regarding whether the purchaser is the actual buyer of the firearm (question 11a on Form 4473). This position lacks merit, based upon the plain language of the statute, which criminalizes the making of “any false statement” with respect to information that is required to be kept by firearms licensees. See
Pena‘s reliance upon United States v. Polk, 118 F.3d 286, 295 (5th Cir.1997), is misplaced. Polk was based upon the determination that a violation of
Pena‘s challenge to his conviction on the third count, which charged a violation of
AFFIRMED.