USA v. Balleza, No. 09-10131

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM:
Citation613 F.3d 432
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Hector GUILLERMO BALLEZA, also known as Pancho, also known as Yiyo, Defendant-Appellant.
Decision Date27 July 2010
Docket NumberNo. 09-10131

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.


613 F.3d 433

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

613 F.3d 434

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...

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67 practice notes
  • United States v. Tobin, Nos. 09–13944
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 12, 2012
    ...Cir.2004); see also United States v. Armstrong, 550 F.3d 382, 397 (5th Cir.2008), overruled on other grounds by United States v. Balleza, 613 F.3d 432, 433 n. 1 (5th Cir.2010). 10. Chebssi suggests that requiring an objective determination as to whether a practitioner acted outside of the u......
  • United States v. Schneider, No. 10–3281.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 16, 2013
    ...See United States v. Armstrong, 550 F.3d 382, 398 (5th Cir.2008), abrogated on other grounds by United States v. Guillermo Balleza, 613 F.3d 432 (5th Cir.2010); United States v. Williams, 445 F.3d 1302, 1309 (11th Cir.2006), abrogated on other grounds by United States v. Lewis, 492 F.3d 121......
  • United States v. Gray, No. 12-10990
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 15, 2013
    ...and Kemp cite United States v. Armstrong, 550 F.3d 382 (5th Cir. 2008), overruled on other grounds by United States v. Guillermo Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010), where the Fifth Circuit reversed a nurse's conviction for aiding and abetting the writing of false prescriptions w......
  • United States v. Bennett, Criminal No. 1:15cr60–HSO–JCG
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • January 6, 2017
    ...v. Armstrong , 550 F.3d 382, 396–97 (5th Cir. 2008), overruled in part on other grounds by230 F.Supp.3d 560United States v. Balleza , 613 F.3d 432, 433 n.1 (5th Cir. 2010). "Both prongs [of the regulation] are necessary for a prescription to be legitimate...." Id. at 397. In accordance with......
  • Request a trial to view additional results
67 cases
  • United States v. Tobin, Nos. 09–13944
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 12, 2012
    ...Cir.2004); see also United States v. Armstrong, 550 F.3d 382, 397 (5th Cir.2008), overruled on other grounds by United States v. Balleza, 613 F.3d 432, 433 n. 1 (5th Cir.2010). 10. Chebssi suggests that requiring an objective determination as to whether a practitioner acted outside of the u......
  • United States v. Schneider, No. 10–3281.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 16, 2013
    ...See United States v. Armstrong, 550 F.3d 382, 398 (5th Cir.2008), abrogated on other grounds by United States v. Guillermo Balleza, 613 F.3d 432 (5th Cir.2010); United States v. Williams, 445 F.3d 1302, 1309 (11th Cir.2006), abrogated on other grounds by United States v. Lewis, 492 F.3d 121......
  • United States v. Gray, No. 12-10990
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 15, 2013
    ...and Kemp cite United States v. Armstrong, 550 F.3d 382 (5th Cir. 2008), overruled on other grounds by United States v. Guillermo Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010), where the Fifth Circuit reversed a nurse's conviction for aiding and abetting the writing of false prescriptions w......
  • United States v. Bennett, Criminal No. 1:15cr60–HSO–JCG
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • January 6, 2017
    ...v. Armstrong , 550 F.3d 382, 396–97 (5th Cir. 2008), overruled in part on other grounds by230 F.Supp.3d 560United States v. Balleza , 613 F.3d 432, 433 n.1 (5th Cir. 2010). "Both prongs [of the regulation] are necessary for a prescription to be legitimate...." Id. at 397. In accordance with......
  • Request a trial to view additional results

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