United States v. Cardona-Briseno

United States Court of Appeals
for the Fifth Circuit

No. 19-51057
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Juan Antonio Cardona-Briseno,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-496-1

Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Juan Antonio Cardona-Briseno appeals his conviction and within-
guidelines sentence for entry into the United States after removal, in
violation of 8 U.S.C. § 1326, arguing that (1) his “mass plea” with several
other criminal defendants violated his Fifth Amendment right to due process,

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
December 9, 2020

Lyle W. Cayce
Clerk
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(2) his trial counsel rendered constitutionally ineffective assistance, and
(3) his sentence violated his due process rights and the Eighth Amendment’s
prohibition against cruel and unusual punishment.
First, Cardona-Briseno argues that the rearraignment hearing violated
his Fifth Amendment right to due process because the hearing was conducted
with seven other criminal defendants who were charged in separate cases.
Because Cardona-Briseno did not raise this claim in the district court, we
review for plain error. Puckett v. United States, 556 U.S. 129, 136 (2009). The
plain error standard requires, in addition to showing that a forfeited error was
clear or obvious, that the defendant show that the error affects his substantial
rights. Id. at 135. If the defendant satisfies his burden of showing a plain
error, this court “has the discretion to remedy the error” and should do so if
the error had a serious effect on “the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks, citation, emphasis,
and brackets omitted).
The record shows that Cardona-Briseno’s guilty plea satisfied due
process because it was “a voluntary, knowing, and intelligent act.” United
States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). The magistrate judge (MJ)
conducted an extensive plea colloquy during which Cardona-Briseno
expressed his desire to plead guilty and admitted to the acts alleged in the
indictment and factual basis. Cardona-Briseno complains that he was not
advised about the specific punishment he might receive, but the MJ complied
with Rule 11 by advising him of “the maximum prison term and fine for the
offense charged.” United States v. Hernandez, 234 F.3d 255, 256 (5th Cir.
2000) (internal quotation marks and citation omitted). Moreover, he did not
object to the group hearing and does not point to any specific violations of
Rule 11 or demonstrate that he would not have pleaded guilty if not for alleged
Rule 11 errors. See United States v. Dominguez Benitez, 542 U.S. 74, 83
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(2004); United States v. Salazar-Olivares, 179 F.3d 228, 229-30 (5th Cir.
1999).
Next, Cardona-Briseno did not present a claim of ineffective
assistance of counsel in the district court, no evidence as to trial counsel’s
strategy or motives was presented, and the district court did not hold a
hearing or make factual findings. See United States v. Isgar, 739 F.3d 829, 841
(5th Cir. 2014); United States v. Garcia, 567 F.3d 721, 729 (5th Cir. 2009).
Accordingly, we decline to consider Cardona-Briseno’s ineffective assistance
of counsel claim without prejudice to his right to seek collateral review. See
Isgar, 739 F.3d at 841.
Finally, Cardona-Briseno challenges the procedural and substantive
reasonableness of his sentence and argues that the sentence violated his due
process and Eighth Amendment rights. He argues that the district court
failed to state reasons for its sentence. Because he did not raise this argument
in the district court, review is for plain error. See Puckett, 556 U.S. at 136. We
can infer from the record that the district court imposed a sentence at the top
of the guidelines range based on Cardona-Briseno’s lengthy criminal history,
his repeated immigration offenses, and the need to deter him from criminal
activity and to promote respect for the law. See 18 U.S.C. § 3553(a); United
States v. Whitelaw, 580 F.3d 256, 263 (5th Cir. 2009). While its statement of
reasons was brief, it was legally sufficient. See Rita v. United States, 551 U.S.
338, 356 (2007).
Next, Cardona-Briseno contends that his sentence was substantively
unreasonable. He preserved this argument for review by arguing for a
sentence at the low end of the guidelines range before the district court. See
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020). Cardona-
Briseno has not rebutted the presumption that his within-guidelines sentence
was substantively reasonable “by showing that the sentence does not account
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No. 19-51057
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for factors that should receive significant weight, gives significant weight to
irrelevant or improper factors, or represents a clear error of judgment in
balancing sentencing factors.” United States v. Rashad, 687 F.3d 637, 644
(5th Cir. 2012); see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Cardona-Briseno argues that the outbreak of the COVID-19 pandemic
and its detrimental effect on prisoners’ health and safety renders his sentence
cruel and unusual under the Eighth Amendment. He did not have an
opportunity to raise the issue in the district court, and we do “not review for
plain error when the defendant did not have an opportunity to object in the
trial court.” United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en
banc); see also Fed. R. Crim. P. 51(b). He suggests that a review on direct
appeal of whether a sentence was cruel and unusual can include consideration
of prison conditions, but he does not cite any precedent for this proposition.
The Eighth Amendment prohibits sentences that are grossly
disproportionate to the offense, and Cardona-Briseno’s 27-month, within-
guidelines sentence is clearly not grossly disproportionate. See Rummel v.
Estelle, 445 U.S. 263, 264-66, 284-85 (1980); United States v. Gonzales, 121
F.3d 928, 942-44 (5th Cir. 1997), overruled on other grounds by United States v.
O’Brien, 560 U.S. 218 (2010). Cardona-Briseno may raise his prison
condition claims in a § 1983 action or may request compassionate release
under the First Step Act, see First Step Act, Pub. L. No. 115-391, § 603(b)(1),
132 Stat. 5194, 5239 (2018).
Accordingly, the judgment of the district court is AFFIRMED.
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