USA v. Balleza

• Decision Date: 27 July 2010
• Docket Number: No. 09-10131,09-10131
• Citation: 613 F.3d 432
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector GUILLERMO BALLEZA, also known as Pancho, also known as Yiyo, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

613 F.3d 432

UNITED STATES of America, Plaintiff-Appellee,

v.Hector GUILLERMO BALLEZA, also known as Pancho, also known as Yiyo, Defendant-Appellant.

No. 09-10131

Summary Calendar.

United States Court of Appeals,Fifth Circuit.

July 27, 2010.

Joshua Thomas Burgess, I, Asst. U.S. Atty., Forth Worth, TX, for Plaintiff-Appellee.

Christopher Michael McCaffrey, Law Offices of Christopher McCaffrey, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:

Hector Guillermo Balleza (Balleza) appeals the sentence imposed following his guilty plea conviction for conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine and conspiracy to commit money laundering. ¹ Balleza argues that the district court clearly erred by denying him a reduction for his having a minor role in the offense and that the district court erred by not finding that he had a criminal history category of I. Balleza also contends that his 240-month sentence was substantively unreasonable.

Balleza argues that the district court clearly erred by refusing to apply a two-level reduction for his being a minor participant in the offense because he did not lead, recruit, or direct any individual in the criminal offense and because he merely worked under the direction of others. He maintains that the reduction was appropriate because he did not participate in all of the activity alleged in the presentence report (PSR).

The information in the PSR showed that Balleza transported loads of narcotics, counted drug proceeds, conducted counter surveillance during the unloading of large shipments of cocaine, turned over drug proceeds to a courier, personally distributed five kilograms of cocaine, and helped direct the activities of one other person during the conspiracy. While Balleza stated in an affidavit that he did not conduct counter surveillance during the unloading of the large shipments of cocaine, the district court rejected Balleza's self-serving affidavit by rejecting his related objection to the PSR, and the district court was entitled to reject Balleza's self-serving denials based upon the information contained in the PSR. See United States v. Bates, No. 95-50111, 1995 WL 581888 at *8 (5th Cir. Sept.21, 1995) (unpublished); see also 5th Cir. R. 47.5.3 (unpublished opinions issued prior to January 1, 1996, are precedential). Given Balleza's extensive involvement in the drug conspiracy, the district court's determination that Balleza was not a minor participant in the offense was not implausible in light of the record as a whole, and, therefore, was not clearly erroneous. See United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir.2005).

The district court partially granted Balleza's objection to his criminal history category, ruling that Balleza should be considered to have a criminal history category of one and a half and sentencing Balleza to a sentence within the guidelines sentence range applicable if Balleza's criminal history category were I. Nevertheless, Balleza argues that the district court erred because it did not fully grant his objection to his criminal history category. He maintains that both of his prior convictions were relevant conduct to the present offense and should not have resulted in any criminal history points, placing him in criminal history category I. He maintains that the district court's refusal to fully grant his objection harmed him because, even though the district court sentenced him within the guidelines range for a defendant with his offense level and a criminal history category of I, he was not considered eligible for a safety valve reduction.

Balleza's prior conviction for possession of cocaine was for conduct committed prior to the beginning of the present drug conspiracy. Balleza presented no evidence that the cocaine involved in the prior conviction was derived from the present drug conspiracy. Balleza's other prior conviction was for possession of Alprazolam and for failure to identify himself as a fugitive from justice, and there is no indication that the present drug conspiracy included any drug other than cocaine. Accordingly, the probation officer correctly determined that Balleza's prior convictions each counted for one criminal history point, giving Balleza a criminal history category of II. See United States v. Garza, No. 94-41339, 1995 WL 534842 at *5 (5th Cir. Aug. 14, 1995) (unpublished); see also 5th Cir. R. 47.5.3. As the district court ruled that Balleza's criminal history category was the non-existent one and a half, any error committed by the district court in calculating Balleza's criminal history category was in Balleza's favor and was, therefore, harmless to Balleza. See United States v. Morales-Sosa, 191 F.3d 586, 587-88 (5th Cir.1999) (holding that error that does not affect the defendant's substantial rights is harmless).

Balleza asserts that his sentence was substantively unreasonable because it was substantially greater than the sentences of co-defendants who were more culpable than he was. Balleza argues that his sentence was unreasonably high because his criminal history category was incorrectly determined to be II and because he received a two-level enhancement for being convicted of money laundering. He maintains that the long sentence he received was unwarranted because he exercised no discretion in his activities and merely followed orders given by co-defendants via telephone. He asserts that he was only 18 years old at the time of the offense and that nothing in his background or role in the offense suggests that he deserved the sentence he received.

One of the § 3553(a) factors requires the district court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” § 3553(a)(6). However, this disparity factor requires the district court to avoid only unwarranted disparities between similarly situated defenda...