Case: 16-41246 Document: 00514065650 Page: 1 Date Filed: 07/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-41246
Fifth Circuit
FILED
Summary Calendar July 10, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
JUAN JESUS GARCIA-MORENO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-1802-1
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Juan Jesus Garcia-Moreno appeals the 70-month sentence imposed
following his guilty plea to importing 500 grams or more of cocaine, in violation
of 31 U.S.C. §§ 952, 960. He contends the district court erred both by
inappropriately applying a Sentencing Guidelines enhancement; and by not
providing an explicit ruling on his request for a mitigating-role adjustment and
the factual basis for denying that request.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-41246
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Garcia contends the court erred by applying a two-level Sentencing
Guidelines enhancement based on his use of a minor to avoid detection of, or
apprehension for, the offense. See U.S.S.G. § 3B1.4. Along that line, Garcia
asserts he took no affirmative steps to involve his 15-year old daughter, who
rode with him in a truck loaded with 4,991 grams of cocaine; and further, her
presence was plausibly explained. See United States v. Powell, 732 F.3d 361,
380–81 (5th Cir. 2013).
The evidence reveals Garcia lied to Border Patrol Agents about the
purpose of his trip and whether there were narcotics in his truck, and his
daughter corroborated that false narrative. Consequently, the court could
reasonably conclude the purpose of her presence was to help Garcia avoid
detection by law enforcement. Cf. Powell, 732 F.3d at 381. In addition, the
record demonstrates Garcia planned his crime in advance: he not only
admitted his cocaine importation was knowing and intentional, but he told
Border Patrol Agents he alone had control of his truck from the time he bought
the cocaine to the time he was arrested—aside from a single, unspecified 10-
to 15-minute period. “When a defendant’s crime is previously planned . . . the
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No. 16-41246
act of bringing the child along instead of leaving the child behind is an
affirmative act that involves the minor in the offense”. United States v. Mata,
624 F.3d 170, 176 (5th Cir. 2010). Consequently, the court did not err in
applying the § 3B1.4 enhancement. See id. at 175.
Regarding the contention that the court erred by not explicitly ruling on
his request for a mitigating-role adjustment and not articulating the factual
basis for denying that request, see Guideline § 3B1.2, Garcia objected in district
court only to the denial of a mitigating-role adjustment generally. Accordingly,
the Government urges review is only for plain error. In his reply brief, Garcia
maintains he preserved these more specific issues for review, notwithstanding
his failure to lodge a specific objection. “If a litigant believes that an error has
occurred (to his detriment) during a federal judicial proceeding, he must object
in order to preserve the issue”. Puckett v. United States, 556 U.S. 129, 134
(2009). Garcia relies erroneously on decisions by this court that predate
Puckett and do not expressly address preservation of error.
Because Garcia did not preserve these issues in district court, review is
only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Garcia must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett, 556 U.S. at 135. If
he does so, we have the discretion to correct the reversible plain error, but
should do so only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings”. Id.
In his reply brief, Garcia does not address how he satisfies the elements
for plain-error review, relying instead on the position taken in his opening
brief. In any event, he fails, inter alia, to show the requisite clear or obvious
error.
AFFIRMED.
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