United States v. Zuniga

Citation720 F.3d 587
Decision Date20 June 2013
Docket NumberNo. 11–20778.,11–20778.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Edmundo ZUNIGA, also known as Mundo, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

James Lee Turner, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Houston, TX, for PlaintiffAppellee.

Russell Matthew Soloway, Law Office of Russell M. Soloway, P.C., Austin, TX, James Stafford, Houston, TX, for DefendantAppellant.

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

Before ELROD and HIGGINSON, Circuit Judges, and JACKSON, District Judge.*

PER CURIAM:

Edmundo Zuniga (Zuniga) appeals his sentence of 171 months of imprisonment, challenging enhancements for having a management role in his offense and for causing bodily injury. We find no error in the management enhancement, but we VACATE the bodily-injury enhancement, and REMAND for resentencing.

I.

Zuniga pleaded guilty to: (1) interference with commerce by means of robbery, in violation of 18 U.S.C. § 1951(a) (Count One); (2) conspiracy to use and carry a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924( o ) (Count Two); and (3) aiding and abetting the use and carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii) (Count Three).

The Presentence Report (PSR) included facts gathered from interviews of confidential informants, co-conspirators, and witnesses. According to the PSR, a confidential informant told law enforcement that Jose Juarez—a disgruntled drug-dealer—had organized a crew to steal approximately $700,000 and two kilograms of cocaine from a home. The crew included Zuniga and three other men.

Later that day, a police officer who was observing the home saw Zuniga and three co-conspirators arrive in a gold Oldsmobile. While the driver waited in the car, Zuniga and the other two men forced their way into the home with handguns. Six minors were inside the residence when the robbery occurred. Several of the minors told law enforcement that the robbers entered the house screaming, [P]olice, where is the money!” The next day, one of the minors told the police that he saw the crew rush to the back door of the home after learning that the police were outside. The minor stated that he saw “one man trample [ ] over a 15–year–old girl causing her pain in her arm.” He also saw “one man point a gun several times, at [an] 8–year–old.”

According to the PSR, a co-conspirator (“Delgado”) told officials during an interview that Zuniga had recruited him to commit the robbery. Delgado also stated that Zuniga appeared to be in charge of the crew during the robbery because Zuniga would receive calls from an unknown person and then give orders to the other crew members. The PSR also included statements from another co-conspirator (“Alvarez”)—who was Zuniga's cousin—about Zuniga's management role in the robbery of the home. According to Alvarez, Zuniga called him to ask if he wanted to make money. Delgado and Zuniga then picked up Alvarez in the car that they took to rob the home. Inside the car, Alvarez told Zuniga that it was his first time to commit a robbery, and Zuniga then provided the handgun that Alvarez used during the robbery. The PSR also stated that Alvarez was upset at Zuniga for pointing a gun at a child during the robbery.

The PSR recommended a two-level enhancement pursuant to U.S. Sentencing Guidelines Manual [hereinafter “U.S.S.G.”] § 3B1.1(c) because of Zuniga's aggravating role as a manager of the crew that committed the robbery. It also recommended a two-level enhancement pursuant to § 2B3.1(b)(3)(A) because the 15–year–old girl sustained bodily injury when one of the robbers trampled over her in an attempt to escape the home during the offense.

Zuniga objected to the application of the § 3B1.1(c) enhancement for his management role in the robbery. Zuniga argued that he did not recruit others to commit the robbery, and that he was an average participant who was told what to do by others. At the sentencing hearing, the government agreed with defense counsel that the district court should consider Zuniga an average participant. Nevertheless, the district court overruled Zuniga's objection, stressing that the co-conspirators' statements about Zuniga's management role in the robbery were consistent with one another.

Zuniga also objected to the § 2B3.1(b)(3)(A) enhancement for causing bodily injury. He argued that the PSR did not establish that the 15–year–old victim suffered bodily injury, that there was no evidence that the victim sought medical attention, and that the injury was neither painful nor obvious. The district court also overruled this objection, finding that the victim suffered a bodily injury that was painful and obvious.

After adopting the PSR, the district court calculated Zuniga's Guidelines range of seventy to eighty-seven months for Counts One and Two, and concluded that Count Three carried a mandatory minimum term of imprisonment of seven years (eighty-four months) pursuant to § 924(c)(1)(A)(ii).1 The district court determined that a sentence at the high end of the Guidelines range was appropriate based on the extent of Zuniga's involvement in the robbery and the violent nature of his instant and prior offenses. It sentenced Zuniga to concurrent terms of eighty-seven months on Counts One and Two, followed by a consecutive term of eighty-four months on Count Three, for a total sentence of 171 months. Zuniga timely appealed.

II.

We review the district court's interpretation and application of the Guidelines de novo, and its factual findings for clear error. United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir.2011). A factual finding is not clearly erroneous if it is plausible in light of the record as a whole. Id. We will find clear error only if a review of the record results in a “definite and firm conviction that a mistake has been committed.” Id. (internal quotation marks and citation omitted).

A.

Zuniga claims that the government failed to show by a preponderance of the evidence that he had a management role in the robbery, which is necessary to support the § 3B1.1(c) enhancement.2 In support of his position, Zuniga relies on the government's agreement at sentencing that he was an average participant in the robbery. Zuniga further argues that in applying the § 3B1.1(c) enhancement, the district court “relied on third and fourth hand summary statements repeated in the PSR without corroboration.” The government counters that in the absence of rebuttal evidence, the district court was free to adopt the findings of the PSR. It further argues that facts in the PSR regarding Zuniga's management role bore sufficient indicia of reliability because they were based on consistent and detailed statements of two co-conspirators about the robbery.

When making factual findings for sentencing purposes, a district court “may consider any information which bears sufficient indicia of reliability to support its probable accuracy.” United States v. Harris, 702 F.3d 226, 230 (5th Cir.2012) (internal quotation marks and citation omitted). “Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.” Id. (internal quotation marks and citation omitted). However, [b]ald, conclusionary statements” in a PSR are not sufficiently reliable. See id. at 230 n. 2 (quoting United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir.1993)). “If the factual recitation [in the PSR] lacks sufficient indicia of reliability, then it is error for the district court to consider it at sentencing—regardless of whether the defendant objects or offers rebuttal evidence.” See id. at 231. But if the factual recitation in the PSR bears sufficient indicia of reliability, then the defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ollison, 555 F.3d 152, 164 (5th Cir.2009) (citation and internal quotation marks omitted); see also United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995) (confirming that “in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it”). United States v. Vital, 68 F.3d 114, 120 (5th Cir.1995). Rebuttal evidence must consist of more than a defendant's objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Harris, 702 F.3d at 230.

Although this case involves an unusual circumstance in that the government agreed with Zuniga's objection to the role enhancement, Zuniga cites no authority to support his argument that it was error, simply because the government agreed with his objection, for the district court to impose the § 3B1.1(c) enhancement. Zuniga objected to the accuracy of the facts in the PSR involving his management role in the robbery, but he did not introduce any rebuttal evidence to show that those facts were “materially untrue, inaccurate or unreliable.” Id. The district court explicitly reasoned that the co-conspirators' detailed accounts in the PSR of the offense and Zuniga's management role were reliable because they were consistent with one another. Specifically, the district court stated at Zuniga's sentencing hearing: “So, we've got two people saying that ... Zuniga was the leader of the crew.”

In his brief, Zuniga asserts in passing that facts in the PSR of his management role were unreliable simply because they were based on statements of his co-conspirators. We have previously rejected this argument. See United States v. Cantu–Ramirez, 669 F.3d 619, 629 (5th Cir.2012) (affirming that a co-conspirator's testimony that supported a PSR calculation was not categorically unreliable for sentencing purposes). Zuniga's reliance on United States v....

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