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United States v. Sanchez-Villarreal

United States Court of Appeals, Fifth Circuit

May 23, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
FRANCISCO JAVIER SANCHEZ-VILLARREAL, Defendant-Appellant

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

          Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge.

         Francisco Javier Sanchez-Villarreal pleaded guilty to possession with intent to distribute cocaine. The district court sentenced Sanchez-Villarreal to 155 months' imprisonment after refusing to apply a mitigating-role adjustment. Sanchez-Villarreal appealed, and we vacate and remand for resentencing.

         I

         On or about February 10th, 2015, a police officer stopped Sanchez-Villarreal while driving in Texas. The officer discovered five bundles of cocaine weighing approximately 5.95 kilograms, and an additional four plastic baggies of cocaine in the truck. Sanchez-Villarreal stated that he had been hired by a person he knew only as "Chaparro" to transport the cocaine. He admitted that he was paid $1, 000 to deliver the cocaine to an unknown person who would be waiting at a convenience store and that he personally intended to sell the four baggies of cocaine. He also admitted that, less than a month earlier, he had delivered approximately the same amount of cocaine for Chaparro. A zippered pouch containing a handgun, a loaded magazine and second magazine clip, and nineteen rounds of ammunition was also found concealed above the truck's driver's seat visor. Sanchez-Villarreal stated that "they" had provided him with the firearm for protection, but he did not identify "they."

         On March 4, 2015, a federal grand jury indicted Sanchez-Villarreal for conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and for possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. Pursuant to a plea agreement, Sanchez-Villarreal pleaded guilty to the second count.

         The Probation Officer prepared the presentence report (PSR) using the 2014 edition of the Guidelines Manual, and calculated Sanchez-Villarreal's total offense level to be 29. That offense level combined with Sanchez-Villarreal's Category V criminal history yielded a Guidelines sentencing range of 140 to 175 months.

         Sanchez-Villarreal filed written objections to the PSR. Relevant here, he objected to the PSR's failure to recommend a mitigating-role adjustment under U.S.S.G. § 3B1.2. In response, the Probation Office maintained its position that a mitigating-role adjustment was not warranted.

         At the sentencing hearing, Sanchez-Villarreal's counsel urged the court to grant his client a mitigating-role reduction. He argued that Sanchez was a "standard 'mule'" who had been ordered to transport drugs without knowing the end location and without coordinating or initiating the drug trafficking.

         The district court judge responded that she understood the argument and the standards for assessing the role, but she ultimately overruled the objection and concluded that Sanchez-Villarreal's conduct did not warrant a mitigating-role adjustment. In doing so, the judge advised that this was one area where she "probably had some disagreement with the guidelines as well." The district court explained its reasoning:

[B]ecause while it's true that he kind of may be not the person involved at the high end of the overall conspiracy, he may not be the person organizing everything, he may be not the person gaining the most financially from this, but - but he is - I'm hesitating to use the word "critical, " but I'll go ahead and use the word "critical." He is critical to the operation as far as moving the drugs, and - and also, especially here, where by his own admission this was the second time he'd done this - and in that regard I do consider that, his admission - he's -he's entrusted, obviously to get this work done. If we didn't have individuals like Mr. Sanchez willing to get this work done, then the choice from the people that are higher up would be either to stop doing it or to do it themselves, and then we'd be able to at least have those defendants facing the penalties.

         After overruling Sanchez-Villarreal's mitigating-role objection, the district court announced an oral sentence of 135 months' imprisonment. Several hours later that day, the district court reconvened the sentencing hearing and the judge explained that she had misspoken that morning and meant to sentence Sanchez-Villarreal to 155 months' imprisonment. Counsel for Sanchez-Villarreal objected to the ...


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