Case: 15-11267 Document: 00513756952 Page: 1 Date Filed: 11/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11267 FILED
Summary Calendar November 11, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID HERNANDEZ-CUEVAS, also known as David Hernandez, also known
as Luis Alfonso Calletano-Ramos,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CR-69-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
David Hernandez-Cuevas appeals the sentence imposed following his
guilty plea conviction for aiding and abetting the distribution of 50 grams or
more of methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(viii).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-11267
He now generally challenges the substantive policy behind the
Sentencing Guidelines’ differential treatment of actual methamphetamine and
a mixture and substance containing methamphetamine. More specifically, he
asserts that drug purity “is not indicative of increased criminal culpability or
any other aggravating factor.” He further asserts that the district court plainly
erred by sentencing him under U.S.S.G. § 2D1.1’s drug quantity table, given
its flawed reliance on drug purity to distinguish offenders who possess or
distribute actual methamphetamine from those that possess or distribute a
mixture or substance containing methamphetamine.
As Hernandez-Cuevas concedes, this argument is subject to plain error
review because it was not presented to the district court. To establish plain
error, he must show: (1) a forfeited error; (2) that is clear or obvious; and
(3) that the error affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
Hernandez-Cuevas cannot establish that the district court plainly erred
for two reasons. First, he cites no precedential or persuasive legal authority to
support his argument that the district court erred or clearly erred by not
deviating from the drug quantity table for the policy reasons that he advances.
The absence of persuasive authority dooms this argument on plain error
review. See United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010). Second,
he does not explain how the purported error affects his substantial rights or
the fairness, integrity, or public reputation of judicial proceedings. Thus, he
fails to adequately brief the third and fourth prongs of plain error review.
United States v. Jefferson, 751 F.3d 314, 322 (5th Cir. 2014) (assuming that
error occurred but denying relief because defendant failed to establish that
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No. 15-11267
error affected substantial rights); United States v. Charles, 469 F.3d 402, 408
(5th Cir. 2006) (“Inadequately briefed issues are deemed abandoned.”); Beasley
v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986) (counseled briefs are not entitled
to liberal construction).
Because Hernandez-Cuevas fails to establish the second prong of plain
error review and fails to adequately brief the third and fourth prongs, the
judgment of the district court is AFFIRMED.
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