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United States v. Rico

United States Court of Appeals, Fifth Circuit

July 20, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
ISMAEL RICO, Defendant-Appellant

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

          Before REAVLEY, HAYNES, and COSTA, Circuit Judges.

          HAYNES, Circuit Judge:

         In this appeal of a criminal sentence, Defendant Ismael Rico challenges the application of two enhancements to his base offense level and the denial of a reduction for acceptance of responsibility. For the following reasons, we AFFIRM.


         Defendant Ismael Rico pleaded guilty to conspiracy to possess with intent to distribute a controlled substance. In Rico's presentence investigation report ("PSR"), the probation officer assessed a base offense level of thirty-eight. The PSR also applied a two-level adjustment under United States Sentencing Guideline ("U.S.S.G.") § 2D1.1(b)(1) because the offense involved a firearm; a two-level adjustment under U.S.S.G. § 2D1.1(b)(5) because the methamphetamine that Rico distributed had been imported; and a two-level adjustment under U.S.S.G. § 2D1.1(b)(12) on the basis that Rico maintained a premises for the purpose of distributing a controlled substance.[1] Following a three-level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility, The PSR calculated Rico's total offense level as forty-one. That total offense level, combined with a criminal history category of III, yielded a guidelines imprisonment range of 360 months to life. But because the statutory maximum prison term was forty years, the guidelines range became 360 to 480 months. See 21 U.S.C. §§ 841(b)(1)(B), 846; U.S.S.G. § 5G1.1(a); U.S.S.G. Ch. 5, Pt. A.

         At sentencing, the district court denied the reduction for acceptance of responsibility, but otherwise adopted the PSR, resulting in a Guidelines range of 480 months due to the statutory maximum. The district court sentenced Rico to 400 months in prison and a four-year term of supervised release.


         We review the interpretation of the Guidelines de novo and factual findings for clear error. United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012). There is no clear error where the district court's finding is plausible in light of the record as a whole. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (per curiam).


         In his first issue on appeal, Rico challenges the two-level enhancement he received for importation of methamphetamine under U.S.S.G. § 2D1.1(b)(5). More specifically, he maintains that the information in the PSR was insufficient to support a finding that the methamphetamine was from Mexico. Where a defendant has intentionally relinquished or abandoned a known right, the issue is waived. United States v. Olano, 507 U.S. 725, 733 (1993). Because Rico waived this objection, we cannot address it. See United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995) ("Waived errors are entirely unreviewable, unlike forfeited errors, which are reviewable for plain error.").

         In his objections to the PSR, Rico contested that the methamphetamine was imported from Mexico. By his written objections, Rico essentially made two arguments: (1) he did not know the origin of the methamphetamine, and thus his base offense level could not be enhanced and (2) the information contained in the PSR was insufficient to support the enhancement because it was unreliable. Prior to the sentencing hearing, the district court entered an order tentatively concluding that Rico's objections were without merit. The district court stated that it was "advising the parties of such tentative conclusion so that it can be taken into account by the parties in determining what presentations to make at the sentencing hearing."

         At the sentencing hearing, the district court asked Rico whether he "still want[ed] to pursue any of those objections." Counsel for Rico responded in the affirmative, but chose to pursue some, but not all, of the objections. He stated that, as to the importation enhancement, "that's a legal objection as to the standard used by the Fifth Circuit. We're simply making that objection to preserve it for later appeal." Counsel further conceded that he "agree[d] that . . . as the law stands now, that is a proper finding." (emphasis added). Indeed, when the court clarified whether "the issue is whether or not the law should be that the increase should not be applicable if he doesn't know it came from Mexico, " counsel responded, "Yes, Your Honor." This exchange shows that, although Rico knew of his objection based on insufficient information, he consciously decided to forgo that objection at sentencing. Instead, he limited his objection to the standard applied by this circuit and acknowledged the enhancement was proper under that precedent. Accordingly, he waived his objection. See Musquiz, 45 F.3d at 931.

         Rico maintains that the tentative ruling was sufficient to preserve the issue on appeal. We disagree. The ruling was only a tentative one, intended to assist the parties in preparing for sentencing. Contrary to Rico's suggestion, it was not meant to discourage pursuing objections; indeed, the district court began the sentencing hearing by explicitly asking Rico if he wanted to pursue any of his objections. Again, Rico did so, but did not pursue all of them. Accordingly, this is not a ...

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