UNITED STATES v. LIRA SALINAS (2021)

United States Court of Appeals, Fifth Circuit.2021-07-14No. No. 20-40734

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Holding. The court affirmed the district court's imposition of the two-level upward adjustment under U.S.S.G. § 2D1.1(b)(2) based on a credible threat of violence, as the finding was plausible in light of the entire record.

Juan Manuel Lira-Salinas pleaded guilty to methamphetamine possession and distribution charges and received a 168-month prison sentence. At sentencing, the district court imposed a two-level upward adjustment to his guideline range after finding that Lira-Salinas had made a credible threat of violence by conveying a message through a coconspirator's girlfriend. Lira-Salinas contested this adjustment, characterizing the message as merely a cautionary warning to an acquaintance rather than an inherent threat.

On appeal, the court reviewed the district court's factual finding regarding the credible threat under a clear-error standard. Because the unrebutted evidence presented at sentencing and the district court's credibility determination supported the inference that Lira-Salinas's message constituted a credible threat of violence, the appellate court found the district court's finding to be reasonable and plausible given the record as a whole.

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Key issues

Whether a message conveyed through a third party constituted a credible threat of violence under the sentencing guidelines
Standard of review for factual findings in sentencing adjustments
Credibility of defendant's testimony regarding intent and meaning of communications

Procedural posture

Lira-Salinas appealed the district court's sentencing decision that included a two-level upward adjustment based on a credible threat of violence finding.

Authorities cited

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Opinion · public domain

Juan Manuel Lira-Salinas pleaded guilty to possession with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine and to conspiracy to do the same. The district court sentenced Lira-Salinas below the applicable guidelines range to concurrent terms of imprisonment of 168 months. He appeals the district courts imposition of a two-level upward adjustment under U.S.S.G. § 2D1.1(b)(2) based on the district courts finding that he made a credible threat of violence. Lira-Salinas argues that the message that he sought to convey to a coconspirator through the coconspirators girlfriend was not inherently threatening and that the circumstances establish that it was simply a cautionary warning to a friend.

A district courts application of § 2D1.1(b)(2) is a factual finding that this court reviews for clear error. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “[A] district court is permitted to draw reasonable inferences from the facts, and these inferences are fact-findings reviewed for clear error as well.” United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). A finding is clearly erroneous “only if, based on the entirety of the evidence,” this court is “left with the definite and firm conviction that a mistake has been committed.” United States v. Oti, 872 F.3d 678, 699 (5th Cir. 2017). If the finding is “plausible in light of the record as a whole,” it is not clearly erroneous. Id. at 700 (internal quotation marks and citation omitted).

The district court has wide discretion in determining which evidence to consider and whether to credit the testimony of witnesses. United States v. Edwards, 65 F.3d 430, 432 (5th Cir. 1995). The presentence report (PSR) is presumed reliable, and a sentencing court may rely on the facts recounted in the PSR unless the defendant demonstrates by competent rebuttal evidence that the information is “materially untrue, inaccurate or unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal quotation marks and citation omitted).

Based on the unrebutted evidence presented at Lira-Salinass sentencing and the district courts finding that his testimony was not credible, the district court reasonably inferred that the message that he sought to have conveyed to his coconspirator constituted a credible threat to use violence. See Caldwell, 448 F.3d at 290, 292; United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). Because the district courts finding that Lira-Salinas made a credible threat to use violence was plausible in light of the record as a whole, its judgment is AFFIRMED. See Oti, 872 F.3d at 700.

FOOTNOTES

FOOTNOTE

Per Curiam:*

FN* Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.