### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 c onspiracy 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, concerni n g t rial counsel’s conflicts of interest. The U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary6, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-40358 Document: 00511716956 Page: 1 Date Filed: 01/06/2012No. 10-40358

district court held a sufficient hearing regarding such conflicts. After discussing them, the court determ i n e d

– 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

. Alth o u gh , post- Booker , the Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an ab u s e - o f

- di s c r e tio n s t an d ar d , th e di s tric t 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 preserve d hi s obj e c tio n in district court to the Guideline § 3B1.1(b) enhancement, discussed infra ; but, he di d not preserve the other sentencing issues r a i sed 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 procee dings”. 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

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improperly enhancing h i s s entence 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-Guidel i n es 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 believe d th e Guidelines were mandatory or failed to consider the § 3553(a) factors, there was no error. Regarding Guid e l i n e § 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 lead e r) a n d t he criminal activity involved five or more partici p a nts or was otherwise extensive”. U.S.S.G. § 3B1.1(b). Amador was involved in an extensive drug conspiracy, wherein he: purchased d r u g s ; s o l d them; and employed and directed runners to de live r , 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 h i s s e ntence 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 prese n t e vi d ence to

overcome that presumption. E.g. , United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). Therefore, no error has been shown. Fi n ally, 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.
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