IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40015

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

FRANCISCO MEZA-ROJAS, also known as Chacho, also known as El Ocho,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:05-CR-926-1

Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Francisco Meza-Rojas pleaded guilty to conspiracy to possess, with intent

to distribute, 169 kilograms of cocaine and 4,736 kilograms of marijuana. The

district court sentenced him to 324-months’ imprisonment and five-years’

supervised release. Meza, proceeding pro se, challenges on numerous grounds

both his conviction and sentence. 

Meza contends the district court erred when accepting his guilty plea by:

failing to admonish him regarding the nature of the charge against him; taking

United States Court of Appeals

Fifth Circuit

F I L E D

July 3, 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.

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multiple pleas in the same proceeding; failing to advise him fully on the

consequences of supervised release; and wrongly advising him that he was

subject to a term of supervised relief for life. No objection having been made in

district court to any of these claimed errors, review is only for plain error. United

States v. Vonn, 535 U.S. 55, 59 (2002). To show reversible plain error, Meza

must show a forfeited, plain (clear or obvious) error that affects his substantial

rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a

showing, our court has the discretion to correct the plain error, but only if it

seriously affects the fairness, integrity, or public reputation of the judicial

proceeding. Id. Meza has not shown that the district court committed any

errors in accepting his guilty plea. And even if he had, Meza has not made the

requisite showing, under plain-error review, that it was reasonably probable

that, but for any error, he would not have pleaded guilty. United States v.

Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006). 

Meza also maintains the Government breached the plea agreement by:

introducing information that raised his base offense level above 32; not

recommending a sentence reduction for his cooperation; and not allowing him

additional opportunities to cooperate. Because Meza did not raise this breach-ofplea-agreement issue in district court, review is again only for plain error. E.g.,

United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). Meza has the burden

of demonstrating, by a preponderance of the evidence, the underlying facts that

establish the breach. E.g., United States v. Roberts, 624 F.3d 241, 246 (5th Cir.

2010). Meza cannot meet this burden, however, because he has not shown that

the Government made any of the promises he alleges were breached. 

Meza claims the district court erred in accepting his guilty plea because

there was an insufficient factual basis to establish that he conspired to possess

the controlled substances with the intent to distribute them. The elements of

possession with intent to distribute a controlled substance are: (1) knowledge;

(2) possession of a controlled substance; and (3) intent to distribute. E.g., United

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States v. Ortega Reyna, 148 F.3d 540, 543-44 (5th Cir. 1998). Given that the

controlled substances were the equivalent of thousands of pounds of marijuana,

intent to distribute may be inferred. E.g., United States v. Guanespen-Portillo,

514 F.3d 393, 396-97 (5th Cir. 2008).

Meza contends, on several grounds, that his sentence of 324-months’

imprisonment was procedurally flawed and substantively unreasonable.

Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), the first inquiry is

whether the district court committed any procedural errors. If the district

court’s decision is procedurally sound, next considered, “under an abuse-ofdiscretion standard”, is “the substantive reasonableness of the sentence

imposed”, in the light of “the totality of the circumstances”. Id. 

Meza asserts the district court erred in holding him responsible for an

equivalent amount of 38,536 kilograms of marijuana. Along that line, Meza

contends the district court erred by not resolving his objections to the

presentence investigation report (PSR) and by adopting the facts contained in

it. The district court’s findings of fact at sentencing are reviewed under the

clearly-erroneous standard. United States v. Lyckman, 235 F.3d 234, 237 (5th

Cir. 2000). It may rely on a PSR when making factual determinations and “may

adopt the facts contained in the PSR without further inquiry if the facts have an

adequate evidentiary basis and the defendant does not present rebuttal

evidence”. United States v. Cooper, 274 F.3d 230, 239 (5th Cir. 2001). “The

defendant has the burden of showing that the information relied on by the

district court in the PSR is materially unreliable.” United States v. Ford, 558

F.3d 371, 377 (5th Cir. 2009) (internal quotation marks omitted). Meza has not

shown that this factual finding failed to resolve the disputed issues or was

clearly erroneous.

Meza maintains the district court erred in applying the four-level

enhancement for his leadership role in the offense. Review is for clear error.

Lyckman, 235 F.3d at 237. Under Sentencing Guideline § 3B1.1(a), defendant’s

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offense level should be increased by four levels if he “was an organizer or leader

of a criminal activity that involved five or more participants or was otherwise

extensive”. Meza has not shown that the district court clearly erred in

determining Meza satisfied these requirements for being a leader of the

extensive criminal activity. See United States v. Curtis, 635 F.3d 704, 720 (5th

Cir.), cert. denied, 132 S. Ct. 191 (2011). 

Meza contends the district court erred in calculating his total offense level

when it subtracted the three-level, acceptance-of-responsibility reduction from

an adjusted total offense level of 44, rather than 43, the highest total offense

level allowed under the advisory Sentencing Guidelines. Meza did not raise this

issue in district court. In United States v. Arreola-Albarran, 210 F. App’x 441,

443 (5th Cir. 2006), our court found that plain-error review was appropriate for

this issue when not raised in district court. Our court then found that the

district court’s method of calculation was not plain error. Id.; see also United

States v. Wood, 48 F.3d 530, **6-7 (5th Cir. 8 Feb. 1995).

Meza claims his sentence of 324-months’ imprisonment was substantively

unreasonable because it failed to account adequately for disparity in the

sentences given his codefendants. When, as here, the district court imposes a

sentence within a properly calculated guidelines range, the sentence is entitled

to a presumption of reasonableness. E.g., United States v. Alonzo, 435 F.3d 551,

554 (5th Cir. 2006). The district court heard and specifically considered Meza’s

sentencing-disparity contention, but concluded that a sentence within the

recommended Guidelines range was appropriate. Meza has not shown that the

district court failed to give proper weight to his contention. See United States

v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

Lastly, and notwithstanding his specific agreement to a two-level,

obstruction-of-justice increase to his offense level, Meza asserts that the district

court erred by increasing his punishment for such conduct. He relies on an

extradition treaty between the United States and Mexico. (The obstruction-of

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-justice enhancement stemmed from Meza’s escape from custody, after

indictment, and subsequent extensive time as a fugitive in Mexico.) Meza raised

this issue before the district court, which rejected it, noting that Meza was not

being prosecuted for escaping from custody, and that it could consider such

evidence as a sentencing factor for the conspiracy offense. Review is de novo.

E.g., United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Meza’s contention lacks merit. “[The] use of evidence of related criminal conduct

to enhance a defendant’s sentence for a separate crime within the authorized

statutory limits does not constitute punishment for that conduct”. Witte v.

United States, 515 U.S. 389, 399 (1995). See also United States v. Angleton, 201

F. App’x 238, 243-44 (5th Cir. 2006) (applying Witte to reject challenge similar

to Meza’s); United States v. Garrido-Santana, 360 F.3d 565, 576-79 (6th Cir.

2004) (same); United States v. Lazarevich, 147 F.3d 1061, 1063-65 (9th Cir. 1998)

(same).

AFFIRMED.

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