Case: 16-30828 Document: 00513975520 Page: 1 Date Filed: 05/02/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30828 FILED
Summary Calendar May 2, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DION PAUL BARNES, also known as Douglas M. Barnes, also known as
Christopher Singleton, also known as Terrell Rios, also known as Myron
Brooks,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:15-CR-133-1
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Dion Paul Barnes appeals his conviction and sentence following his
guilty plea, pursuant to a written agreement, to conspiracy to make, utter, and
possess counterfeit securities. He argues, for the first time on appeal, that the
Government breached its agreement to recommend a third-level reduction in
his offense level for acceptance of responsibility and to permit him to freely
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-30828 Document: 00513975520 Page: 2 Date Filed: 05/02/2017
No. 16-30828
litigate the loss amount attributable to him. We review for plain error. See
Puckett v. United States, 556 U.S. 129, 134, 143 (2009); United States v.
Hinojosa, 749 F.3d 407, 411 (5th Cir. 2014).
We look to whether the Government’s conduct was consistent with the
parties’ reasonable understanding of the agreement. See Hinojosa, 749 F.3d
at 413; United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). Here, the
Government satisfied its obligation when it moved in the plea agreement for a
one-point reduction. Absent the district court’s award of the initial two levels
for acceptance of responsibility, the Government cannot be said to have had
any further obligation under the plea agreement with respect to acceptance of
responsibility. See U.S.S.G. § 3E1.1(b); Hinojosa, 749 F.3d at 413; United
States v. Hernandez-Garcia, 442 F. App’x 136, 137 (5th Cir. 2011); United
States v. Stetzel, 183 F. App’x 432, 434 (5th Cir. 2006). Nor does the record
show that the Government breached the plea agreement with respect to
Barnes’s freedom to litigate the loss amount, as the Government’s argument
was that Barnes was not entitled to a two-level reduction because he had lied
and had denied relevant conduct.
Even if, for the sake of argument, the Government’s objection to Barnes’s
receiving a reduction for acceptance of responsibility was contrary to Barnes’s
reasonable understanding of the agreement, he cannot show the Government’s
purported breach affected his substantial rights. See Hinojosa, 749 F.3d at
411. Given Barnes’s conduct with respect to his identity and that he denied all
relevant conduct, he was not entitled to a two-level reduction for acceptance of
responsibility under § 3E1.1(a). See U.S.S.G. § 3E1.1(a), (b), comment.
(nn.1(A), 3).
The judgment of the district court is AFFIRMED.
2