Case: 19-50942 Document: 00515593385 Page: 1 Date Filed: 10/07/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 7, 2020
No. 19-50942 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Eduardo Hinojosa-Almance,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-258-1
Before Higginbotham, Jones, and Higginson, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Appellant Luis Eduardo Hinojosa-Almance (“Hinojosa”) pleaded
guilty to marijuana-trafficking offenses and received two concurrent, within-
Guidelines sentences of 27 months. On appeal, Hinojosa challenges the
district court’s denial of a sentencing adjustment for acceptance of
responsibility, as well as the substantive reasonableness of his sentence.
Finding no error, we affirm.
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No. 19-50942
I.
Border Patrol agents arrested Hinojosa on March 17, 2019, after
finding two bundles of marijuana in an auxiliary fuel tank attached to his
truck. Within a few days, Hinojosa was released from custody on a $40,000
appearance bond. Among other conditions of his pretrial release, he was
ordered not to drink alcohol excessively and to report any contact with law
enforcement to the Pretrial Services Office within 24 hours. The following
month, a grand jury returned a two-count indictment charging Hinojosa with
importing and possessing marijuana with intent to distribute. 1 He pleaded
guilty in June without a plea agreement, and his sentencing hearing was set
for September.
Hinojosa maintained employment as a welder and supported his wife
and two children while awaiting sentencing. However, he reported to Pretrial
Services that on the night of August 3, 2019, he violated the excessive-
drinking condition of his bond. He had caught a ride home with a friend after
drinking twelve beers at a bar, then, once home, begun arguing with his wife.
As the argument escalated, Hinojosa decided to leave the home. He drove
away in his truck, still inebriated, but then recognized he was unfit to drive
and pulled over, leaving his truck “at an unknown location.” He walked back
toward his house, where his sister had become so concerned about his driving
under the influence that she called the police. By the time officers arrived,
Hinojosa was at home and asleep.
In addition to this episode, Pretrial Services learned that Hinojosa had
failed to timely report contact with law enforcement despite having received
three traffic citations on July 6, 2019. As a result of these infractions,
Hinojosa’s pretrial release conditions were modified to prohibit alcohol use
1
See 21 U.S.C. §§ 952, 960, 841(a)(1).
2
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No. 19-50942
entirely, and Hinojosa was ordered to receive substance abuse counseling. He
complied with the new conditions up until his sentencing hearing, attending
AA meetings twice a week and abstaining from alcohol.
At sentencing, the district court denied Hinojosa’s request for a
downward adjustment for acceptance of responsibility, reasoning “that a
defendant’s failure to comply with conditions of a bond is highly relevant to
assessing the sincerity of [his] contrition.” Moreover, the drunk-driving
incident was a sign that Hinojosa had not fully “withdrawn from criminal
conduct.” The district court also denied Hinojosa’s motion for a downward
variance and imposed two concurrent sentences of 27 months, at the bottom
of Hinojosa’s Guidelines range. On appeal, Hinojosa challenges the district
court’s denial of an acceptance-of-responsibility adjustment. He also
contends that his 27-month sentence is substantively unreasonable.
II.
A.
Section 3E1.1(a) of the Sentencing Guidelines provides for a two-
offense-level downward adjustment “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense.” The Guidelines furnish a
nonexclusive list of factors for the district court to consider in determining
whether a defendant qualifies for this adjustment, including “voluntary
termination or withdrawal from criminal conduct or associations.” 2
Although a defendant’s “[e]ntry of a plea of guilty prior to the
commencement of trial combined with truthfully admitting the conduct
comprising the offense of conviction . . . will constitute significant evidence
2
U.S.S.G. § 3E1.1 cmt. n.1(B).
3
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of acceptance of responsibility,” 3 he “is not entitled to this adjustment
simply by virtue of pleading guilty.” 4 A guilty plea “may be outweighed by
conduct . . . that is inconsistent with such acceptance of responsibility.” 5
“[W]e review the district court’s interpretation and application of the
sentencing guidelines de novo and its findings of fact for clear error.” 6
However, because the district court “is in a unique position to evaluate a
defendant’s acceptance of responsibility,” 7 its denial of a § 3E1.1 adjustment
is “reviewed with particular deference.” 8 Such a “ruling should not be
disturbed unless it is without foundation.” 9
B.
It is undisputed that Hinojosa violated his pretrial release conditions
by failing to report police contact and drinking excessively. He also engaged
in criminal conduct by driving under the influence of alcohol. Hinojosa
argues that he was nevertheless entitled to a § 3E1.1(a) adjustment because
his pretrial release violations were unrelated to his marijuana offenses, for
which he “had sincerely and contritely accepted responsibility.”
3
Id. § 3E1.1 cmt. n.3.
4
United States v. Pierce, 237 F.3d 693, 694 (5th Cir. 2001).
5
U.S.S.G. § 3E1.1 cmt. n.3.
6
United States v. Lord, 915 F.3d 1009, 1017 (5th Cir. 2019).
7
United States v. Cabrera, 288 F.3d 163, 175 (5th Cir. 2002) (per curiam) (quoting
U.S.S.G. § 3E1.1 cmt. n.5).
8
Lord, 915 F.3d at 1017; see United States v. Najera, 915 F.3d 997, 1002 (5th Cir.
2019) (quoting United States v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995)) (“A district
court’s refusal to reduce a sentence for acceptance of responsibility is reviewed under a
standard ‘even more deferential than a pure clearly erroneous standard.’”).
9
Maldonado, 42 F.3d at 913 (internal quotation marks omitted) (quoting United
States v. Roberson, 872 F.2d 597, 610 (5th Cir. 1989)).
4
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It is not reversible error for the district court to deny a § 3E1.1(a)
reduction where the defendant broke the law while on bond, even where
those violations were not directly related to the underlying criminal conduct
with which he was charged. 10 A district court may also consider any violation
of the defendant’s pretrial release conditions. 11 Even without considering
Hinojosa’s pretrial release violations, his driving while intoxicated supports
the district court’s decision, which is therefore not without foundation.
III.
A.
Hinojosa next contends that his 27-month sentence is substantively
unreasonable. 18 U.S.C. § 3553(a) requires the district court to “impose a
sentence sufficient, but not greater than necessary, to comply with the
purposes” enumerated by the statute, which include deterrence, public
safety, and respect for the law. 12 Because Hinojosa properly preserved his
objection, we review the reasonableness of his sentence for abuse of
discretion. 13
10
United States v. Rickett, 89 F.3d 224, 225 (5th Cir. 1996) (“The district court may
properly deny a reduction for acceptance of responsibility for failure to refrain from
criminal conduct while on pretrial release.”); United States v. Watkins, 911 F.2d 983, 985
(5th Cir. 1990) (“[T]he district court’s interpretation that acceptance of responsibility
includes refraining from any violations of the law is not without foundation.”).
11
See Rickett, 89 F.3d at 227 (“This court has also held that it was not improper for
a district court to consider a defendant’s failure to comply with the conditions of his bond
in determining whether to grant a reduction for acceptance of responsibility.” (citing
United States v. Hooten, 942 F.2d 878, 882-83 (5th Cir. 1991)).
12
18 U.S.C. § 3553(a); see id. § 3553(a)(2)(A)–(D).
13
At sentencing, Hinojosa’s counsel argued that his 27-to-33-month Guidelines
range was excessive and requested a sentence of 12 months and a day. However, counsel
did not object to Hinojosa’s sentence after it was pronounced. At the time of the parties’
briefing in this case, it was unclear whether a post-pronouncement objection was necessary
5
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Our review “is highly deferential, because the sentencing court is in a
better position to find facts and judge their import under the § 3553(a) factors
with respect to a particular defendant.” 14 Moreover, we apply a presumption
of reasonableness to within-Guidelines sentences like Hinojosa’s. 15 That
presumption is rebutted only upon a showing “that the district court did not
consider a sentencing factor that should have received significant weight,
gave significant weight to a factor it should have discounted, or made a clear
error of judgment when it balanced the relevant factors.” 16
B.
Hinojosa contends that his 27-month sentence is “unnecessary” and
“fails to account for [his] history and circumstances.” He points out that he
had a clean record prior to this offense, cooperated with authorities following
his arrest, and maintained employment while addressing his alcoholism
through AA. The record shows that the district court considered all these
factors, which were ably presented by counsel at a lengthy hearing, before
determining that a Guidelines sentence was appropriate. Hinojosa does not
engage with the presumption of reasonableness that attends his sentence.
Rather, his “claim amounts to a request that we reweigh the sentencing
to preserve a substantive-reasonableness challenge. However, the Supreme Court has since
held that “advocating for a particular sentence” before the district court, as counsel did
here, is sufficient to “inform[] the court of the legal error at issue” and preserve the
defendant’s “challenge to the substantive reasonableness of the sentence.” Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766–67 (2020).
14
United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (internal quotation
marks omitted) (quoting United States v. Key, 599 F.3d 469, 473 (5th Cir. 2010)).
15
See United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015).
16
United States v. Rodriguez-De la Fuente, 842 F.3d 371, 375 (5th Cir. 2016); see
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
6
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factors and substitute our judgment for that of the district court, which we
will not do.” 17
IV.
For the foregoing reasons, the judgment of the district court is
affirmed.
17
United States v. Hernandez, 876 F.3d 161, 167 (5th Cir. 2017) (per curiam).
7