IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10467

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

AUSTREBERTA MACEDO-FLORES,

Defendant-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CR-281-4

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Austreberta Macedo-Flores (Macedo) appeals following her jury 

convictions for one count of conspiracy to possess with intent to distribute a 

controlled substance and two counts of possession with intent to distribute a 

controlled substance. Macedo argues that the district court erred by denying 

her motion for a new trial, that the district court erred by not granting a 

minimal role adjustment, and that her sentence is substantively unreasonable. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 10, 2015

Lyle W. Cayce

Clerk

 

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No. 14-10467

At trial, an FBI linguist testified that she listened to recorded 

conversations made while Macedo was incarcerated, between Macedo and 

family members. The recorded conversations were not played for the jury or 

introduced into evidence. Macedo contends that the recorded conversations 

were not properly authenticated and that they were not produced to the 

defense prior to trial, which violated the rules of discovery; she raised these 

arguments for the first time in her motion for a new trial. 

Because Macedo first raised the authentication and discovery violation 

arguments in her motion for a new trial, plain error review applies. United 

States v. Garcia, 567 F.3d 721, 726 n.2 (5th Cir. 2009). Macedo thus must show 

a clear or obvious forfeited error affecting her substantial rights. Puckett v. 

United States, 556 U.S. 129, 135 (2009). If she makes this showing, we have

the discretion to correct the error but only if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id. 

Authentication is a condition precedent to the admission of evidence and 

is satisfied when a party presents “evidence sufficient to support a finding that 

the item is what the proponent claims it is.” FED. R. EVID. 901(a). Here, it is 

undisputed that the recorded conversations were not admitted into evidence at 

trial. Because Macedo offers no authority that the recordings required 

authentication, she cannot establish plain error. See United States v. Evans, 

587 F.3d 667, 671 (5th Cir. 2009); Puckett, 556 U.S. at 135; FED. R. EVID. 901. 

Next, Macedo argues that the Government violated the rules of discovery 

by not providing copies of the recorded conversations prior to trial. We will not 

order a new trial based on alleged discovery violations unless the defendant 

shows that a denial of access to evidence was prejudicial to her substantial 

rights. United States v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998). This requires

a showing of “a reasonable probability that, had the evidence been disclosed to 

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the defense, the result of the proceeding would have been different.” United 

States v. Webster, 162 F.3d 308, 336 (5th Cir. 1998) (internal quotation marks 

and citation omitted). Such a probability is shown “where the nondisclosure 

could reasonably be taken to put the whole case in such a different light as to 

undermine confidence in the jury verdict.” Webster, 162 F.3d at 336. 

The trial evidence shows that on April 24, 2013, Macedo sold 

methamphetamine to an undercover officer in a shed behind her home and that 

at least twice, she accepted the delivery of methamphetamine for sale. Based 

on the foregoing, any nondisclosure of the recorded conversations could not 

reasonably be shown to undermine confidence in the jury’s verdict on Macedo’s 

convictions for one count of conspiracy to possess with intent to distribute a 

controlled substance and two counts of possession with intent to distribute a 

controlled substance. See id.; 21 U.S.C. §§ 841, 846. 

Macedo next argues that the district court clearly erred in denying a 

four-level reduction for her minimal role in the offense, She asserts that her 

son directed her to deliver the package to the undercover agent; she was 

unaware that it contained drugs; she was linked to only one sale; and she was 

not recorded on any wiretaps. Under U.S.S.G § 3B1.2, a district court may 

decrease a defendant’s offense level by four levels if the defendant was a 

minimal participant in the criminal activity. Whether the defendant is a 

minimal participant is a factual determination that is reviewed for clear error. 

United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005). 

The record reflects that Macedo participated in numerous sales of 

methamphetamine, she accepted at least four to five deliveries of 

methamphetamine, and a shed behind her home was used to conduct the drug 

conspiracy. Thus, the district court’s finding that she was not a minimal 

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participant is plausible in light of the record as a whole. See Villanueva, 408 

F.3d at 203.

Finally, Macedo argues that her sentence is substantively unreasonable 

given her lack of any prior criminal history and her minor role in the offense. 

Because she did not object to the reasonableness of her sentence, our review is 

for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 

2007). When the district court imposes a sentence within a properly calculated 

guidelines range, the sentence is entitled to a presumption of reasonableness 

that may be rebutted only if the defendant establishes that “the sentence does 

not account for a factor that should receive significant weight, it gives 

significant weight to an irrelevant or improper factor, or it represents a clear

error of judgment in balancing sentencing factors.” United States v. Cooks, 589

F.3d 173, 186 (5th Cir. 2009). We have also indicated that a below-guidelines 

sentence appealed by the defendant is afforded a rebuttable presumption of 

reasonableness. See United States v. Murray, 648 F.3d 251, 258 (5th Cir. 

2011).

The district court considered Macedo’s arguments in mitigation, the 

materials submitted to the court, the 18 U.S.C. § 3553(a) factors, and the 

guidelines range. The court determined that a 144-month below-guidelines 

sentence was appropriate based on Macedo’s age, poverty level, relationship 

with her son, and future deportation status. Macedo’s argument that the 

district court should have sentenced her even lower below the guidelines range 

merely reflects her disagreement with the propriety of her sentence. See 

United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). She has not shown 

sufficient reason for this court to disturb the presumption of reasonableness 

applicable to her sentence. Cooks, 589 F.3d at 186; Murray, 648 F.3d at 258. 

Accordingly, the judgment of the district court is AFFIRMED.

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