IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40358

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

CARLOS AMADOR,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:09-CR-971-3

Before BARKSDALE, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Carlos Amador pleaded guilty to conspiracy to possess, with intent to

distribute, more than 500 grams of methamphetamine; he was sentenced, inter

alia, to 292-months’ imprisonment. 

Amador first claims the district court erred by failing to conduct a hearing

pursuant to United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated

on other grounds by Flanagan v. United States, 465 U.S. 259, 263 & n.2 (1984),

or an evidentiary hearing, concerning trial counsel’s conflicts of interest. The

United States Court of Appeals

Fifth Circuit

F I L E D

January 6, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 10-40358 Document: 00511716956 Page: 1 Date Filed: 01/06/2012
No. 10-40358

district court held a sufficient hearing regarding such conflicts. After discussing

them, the court determined–as it has the authority to do–that it would not

accept a waiver from Amador to allow his then counsel to represent him. Wheat

v. United States, 486 U.S. 153, 160-63 (1988); United States v. Sanchez Guerrero,

546 F.3d 328, 332-34 (5th Cir. 2008). Because a waiver of trial counsel’s conflicts

of interest was not an option, a Garcia hearing (to, inter alia, ensure waiver is

knowing and voluntary) was not necessary. See Garcia, 517 F.2d at 278.

Amador also contends his sentence is unreasonable and unconstitutional,

based on other claimed errors, discussed infra. Although, post-Booker, the

Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed

for reasonableness under an abuse-of-discretion standard,the district court must

still properly calculate the Guideline-sentencing range for use in deciding on the

sentence to impose. E.g., Gall v. United States, 552 U.S. 38, 51 (2007). In that

respect, its application of the Guidelines is reviewed de novo; its factual findings,

only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764

(5th Cir. 2008).

Amador preserved his objection in district court to the Guideline § 3B1.1(b)

enhancement, discussed infra; but, he did not preserve the other sentencing

issues raised on appeal. See United States v. Mondragon-Santiago, 564 F.3d

357, 361 (5th Cir. 2009). These unpreserved issues are reviewed only for plain

error. To establish reversible plain error, Amador must show a clear or obvious

error affecting his substantial rights. E.g., Puckett v. United States, 129 S. Ct.

1423, 1429 (2009). Even if such error is shown, our court retains the discretion

to correct it and, generally, will do so only if it “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings”. Id. (citations and

internal quotation marks omitted). 

Amador contends the court erred by: failing to consider the § 3553(a)

sentencing factors; “strictly appl[ying]” the Sentencing Guidelines; and

2

Case: 10-40358 Document: 00511716956 Page: 2 Date Filed: 01/06/2012
No. 10-40358

improperly enhancing his sentence under Guideline § 3B1.1(b). As discussed,

the first two issues are reviewed only for plain error.

When, as here, the district court imposed a within-Guidelines sentence,

our court presumes the § 3553(a) factors were considered. See United States v.

Mares, 402 F.3d 511, 519 (5th Cir. 2005). The district court heard testimony at

sentencing relating to those factors. Thus, because Amador has not shown the

district court either believed the Guidelines were mandatory or failed to consider

the § 3553(a) factors, there was no error.

Regarding Guideline § 3B1.1(b), a three-level increase in a defendant’s

offense level is authorized “[i]f the defendant was a manager or supervisor (but

not an organizer or leader) and the criminal activity involved five or more

participants or was otherwise extensive”. U.S.S.G. § 3B1.1(b). Amador was

involved in an extensive drug conspiracy, wherein he: purchased drugs; sold

them; and employed and directed runners to deliver, and return payment for, the

drugs. Amador exercised managerial and supervisory responsibility over drugs

and drug proceeds. Thus, the enhancement is plausible in light of the record as

a whole and should not be disturbed. E.g., United States v. Morris, 46 F.3d 410,

419 (5th Cir. 1995). 

Amador further contends his sentence is substantively unreasonable.

When, as here, the sentence imposed is within a properly-calculated Guidelines

range, the sentence is presumptively reasonable. E.g., United States v. Newson,

515 F.3d 374, 379 (5th Cir. 2008). Amador has failed to present evidence to

overcome that presumption. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th

Cir. 2009). Therefore, no error has been shown. 

Finally, Amador’s challenge to the constitutionality of the Guidelines

regime and his assertions of an Eighth Amendment claim do not warrant review. 

United States v. Jasso, 634 F.3d 305, 309 (5th Cir.), cert. denied, 131 S. Ct. 3004

(2011).

AFFIRMED.

3

Case: 10-40358 Document: 00511716956 Page: 3 Date Filed: 01/06/2012
No. 10-40358

4

Case: 10-40358 Document: 00511716956 Page: 4 Date Filed: 01/06/2012