### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 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 July 3, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat 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 forth in 5 T H C IR

. R. 47.5 .4. Case: 11-40015 Document: 00511908788 Page: 1 Date Filed: 07/03/2012No. 11-40015

multiple pleas in the same proceeding; failing to a dvi s e him fully on the consequences of supervised release; and wrongly advising hi m th at 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. Vo n n , 5 3 5 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 c o rr ect the plain error, but only if it seriously affects the fairn e s s , integrity, or public reputation of the judicial proceeding. Id. Meza h as 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 pl ai n - e rror review, that it was reasonably probable th at, but for any error, he would not have pleaded guilty. United Sta t e s v . Castro-Trevino , 464 F.3d 536, 541 (5th Cir. 200 6). Meza also maintains the Government breached the ple a a greement by: introducing information that raised his b a s e o f fense level above 32; not recommending a sentence reduction for his cooperation; and not all o wing him additional opportunities to coop er ate . B ecause 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 h i s gu ilty 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 . O r t e

ga 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. 20 08). Meza contends, on several grounds, that his sentence of 324-mo nths’ imprisonment was procedu rally flawed and substantively unreasonable. Pursuant to Gall v. United States , 5 5 2 U.S. 38, 51 (2007), the first inquiry is whether the di s tri ct court committed any procedural errors. If the district court’s decision is procedurally sound, next consider e d , “u nder an abuse-ofdiscretion standard”, is “th e substantive reasonableness of the sentence imposed”, in the light of “the totality of the circumstances”. Id. Meza asserts the district cou rt erred in holding him responsible for an equivalent a mount of 38,536 kilograms of marijuana. Along that line, Meza contends th e district court erred by not resolving his objections to the presentence investigation r e p ort (PSR) and by adopting the facts contained in it. The distri c t c ourt’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 evidenti ary b asis and the defendant does not present rebuttal evidence”. United States v. Coope r , 274 F.3d 230, 239 (5th Cir. 2001). “The defendant has the burden of showing that the infor m ation 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 t o resolve the disputed issues or was clearly erroneous. M e z a maintains the district court erred in applying the four-lev e l

e nh ancement for his leadership role in the offense. Review is for clear err o r . 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 crimin al activity that involved five or more participants or was otherwise extensive”. Meza has not shown that th e di strict court clearly erred in determining Meza satisfied these requ ir e ments 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 o f f e nse 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 distric t court. Our court then found that the district court’s method of calculatio n w a s n ot plain error. Id. ; see also United States v. Wood , 48 F.3d 530, **6-7 (5th Cir. 8 Feb. 1 995). 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 i m p oses 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 pro per weight to his contention. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 200 9). 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 increas i n g h i s punishment for such conduct. He relies on an extradition treaty between the United States a n d M e xi co. (The obstruction-of

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-justice enhancement s t emmed 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 f

o r escaping from custody, and that it could consider such evidence as a sentencing factor for the c o n spiracy offense. Review is de novo . E.g. , United States v. Cisneros–Gutierrez , 517 F.3d 7 5 1 , 7 6 4 (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 lim it s 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. Ga r r i do - Sa ntana , 360 F.3d 565, 576-79 (6th Cir. 2004) (sam e) ; U

n ited States v. Lazarevich , 147 F.3d 1061, 1063-65 (9th Cir. 1998) (same). AFFIRMED.

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