United States v. Claiborne

Case: 10-51189 Document: 00511803809 Page: 1 Date Filed: 03/28/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 28, 2012

No. 10-51189 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee
v.

TROY DARNELL CLAIBORNE,

Defendant–Appellant

Appeal from the United States District Court
for the Western District of Texas

Before JONES, Chief Judge, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:
This case deals with the district court’s application of the obstruction of
justice enhancement and non-application of the minor role reduction to
Defendant–Appellant Troy Claiborne’s sentence for aiding and abetting the
possession with intent to distribute crack cocaine. We AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 22, 2010, an Odessa Police Department narcotics detective
received information from a confidential informant (“CI”) that a black male,
known as “Twin,” would be selling two ounces of crack to the CI in the H.E.B.
parking lot in Odessa, Texas that night. According to the CI, Twin would be
driving a white Impala with California licenses plates. Based on this tip,
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detectives set up surveillance in the parking lot and observed a white Impala
matching the CI’s description enter and park in the lot. Two black men exited
the car and “were looking around suspiciously as if they were looking for
someone.” Detectives approached the men, who identified themselves as Troy
Claiborne and Levale Weldon. As they were all walking back to the car, a
detective noticed a plastic bag underneath the car on the driver’s side just in
front of the driver’s-side rear tire. The bag contained eight individually-wrapped
packages of crack. Weldon, who owned the Impala, consented to a search of it,
and detectives found white residue, which tested positive for cocaine, on the
floorboards of both the driver’s and the passenger’s side.
Also during the search, three cell phones were recovered—a Samsung, a
Blackberry, and a Motorola. Weldon claimed the Samsung phone was his, and
Claiborne claimed the Motorola. Claiborne initially denied that the Blackberry
was his, but he later claimed the phone. The Blackberry contained text
messages that a detective believed involved drug transactions. Detectives
discovered that the CI had called the Motorola phone when setting up the
purchase. At the time of their arrest, Weldon had $580 on him, and Claiborne
had $1,232. Claiborne claimed that he was unemployed but that he made money
gambling and playing pool. Detectives showed the CI photographs of Weldon
and Claiborne, and the CI identified Weldon as “Twin.” The CI did not, however,
recognize Claiborne.
After the arrests, Claiborne and Weldon were placed in a police car. While
seated in the backseat, Weldon unbuckled both of their seatbelts. Weldon then
started in on a conversation with Claiborne about escaping, asking “Is your
window all the way down like mine?”; “Did he already seat belt you?”; and “Can
you open it up from your door? . . . [’C]uz its gonna take him longer to get to
your side.” Claiborne’s only response to these questions was when Weldon
asked, “You hear me?,” Claiborne replied, “Um-hmm.” Weldon went on to

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explain, “He’s [the detective] gonna try to shut that door . . . pursuing a chase on
you . . . cuz one of us is gonna get away . . . I just can’t live no more . . . .”
After pleading guilty without a plea agreement to aiding and abetting the
possession with intent to distribute five grams or more of crack, see 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. § 2, a Presentence Investigation
Report (“PSR”) was prepared for Claiborne. The probation officer found that
Claiborne had attempted to escape from the police car and recommended
enhancing the offense level for obstructing justice. She calculated a total offense
level of 27—base level of 28, see U.S. Sentencing Guidelines Manual
§§ 2D1.1(c)(6) and (a)(5) (2010), a two-level increase for obstruction of justice, see
id. at § 3C1.1, and a three-level decrease for acceptance of responsibility, see id.
at § 3E1.1. When combined with a criminal history category of I, Claiborne’s
Guidelines range sentence was 70 to 87 months imprisonment. See id. at ch. 5,
pt. A.
Claiborne filed objections to the PSR, arguing, inter alia, that he should
have received a downward adjustment to his offense level, pursuant to § 3B1.2,
because he was a minor participant. The district court determined that
Claiborne had not met his burden of establishing that he was substantially less
culpable than Weldon. The district court imposed a 78-month prison sentence,
in the middle of the Guidelines range, stating, “I’m not departing from the
recommended sentence.” Claiborne timely appealed.
II. STANDARD OF REVIEW
Issues related to a defendant’s sentence are reviewed for reasonableness.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This
reasonableness determination takes the form of abuse of discretion review. Id.
There is a two-step process for this review: “first[,] ensure that the district court
committed no significant procedural error”; and second, “consider[] the
substantive reasonableness of the sentence imposed.” Id. (internal quotation

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No. 10-51189

marks omitted). In going through this two-step process, “a district court’s
interpretation or application of the Sentencing Guidelines is reviewed de novo,
and its factual findings are reviewed for clear error.” Id. (internal quotation
marks omitted). “A factual finding is not clearly erroneous if it is plausible in
light of the record read as a whole.” United States v. Villanueva, 408 F.3d 193,
203 (5th Cir. 2005).
III. DISCUSSION
A. Non-Application of the Minor Role Reduction
A district court may decrease a defendant’s offense level by two levels if it
finds that the defendant was a minor participant in the offense. U.S.S.G.
§ 3B1.2(b). The minor role reduction applies to a defendant “who is less culpable
than most other participants, but whose role could not be described as minimal.”
Id. at § 3B1.2, cmt. n.5. This reduction applies only “when a defendant is
substantially less culpable than the average participant.” Villanueva, 408 F.3d
at 204 (citation and internal quotation marks omitted). “It is not enough that
a defendant does less than other participants; in order to qualify as a minor
participant, a defendant must have been peripheral to the advancement of the
illicit activity.” Id. (internal quotation marks). “A defendant has the burden of
showing that he is entitled to the downward adjustment.” United States v.
Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
Claiborne argues that he acted as a minor participant because (1) the CI
implicated only Weldon, (2) Weldon was driving the Impala on the day of their
arrest and the car belonged to him, and (3) the cocaine was found near the
driver’s rear tire, leading to the conclusion that Weldon—not
Claiborne—possessed the drugs prior to putting them under the tire. The facts
show that Claiborne admitted that he possessed the drugs with the intent to
distribute them “along with Mr. Weldon.” Both Claiborne and Weldon, upon
arriving at the H.E.B. parking lot, exited the Impala and looked around

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“suspiciously as if they were looking for someone.” These actions lead to the
conclusion that Claiborne was involved in the sale to the CI and not a mere
bystander or passenger. Additionally, detectives found cocaine residue on both
the driver’s and the passenger’s floorboards. Claiborne’s Blackberry contained
text messages that a detective believed involved drug transactions, and at the
time of his arrest, Claiborne had $1,232 in cash—despite his claim that he was
unemployed). Finally, the CI called the Motorola cell phone, which Claiborne
claimed was his, to arrange the crack purchase. Although Claiborne might have
been less culpable than Weldon, based on the foregoing facts, Claiborne’s
participation was not peripheral to the advancement of the illicit activity. See
Villanueva, 408 F.3d at 204. Because Claiborne was not substantially less
culpable than the average participant, the district court did not clearly err when
it denied him the minor role reduction under § 3B1.2(b). See id.
B. Application of the Obstruction of Justice Enhancement
A defendant is subject to a two-level increase in his offense level if he
“willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice.” U.S.S.G. § 3C1.1. This adjustment is warranted
where a defendant escaped or attempted to escape from custody. Id. at § 3C1.1,
cmt. n.4(E). Claiborne argues that the PSR demonstrates that Weldon, not
Claiborne, attempted to escape. He notes that Weldon unbuckled their seatbelts
and that Claiborne did not assist, speak to, or communicate with Weldon, except
when Claiborne replied that he had heard Weldon’s plan to escape.
Claiborne, however, failed to object to the application of the two-level
enhancement for obstruction of justice at the district court. This failure to object
below forecloses our review because “[a] district court’s determination that a
defendant has obstructed justice is a factual finding,” United States v. Cisneros,
112 F.3d 1272, 1279 (5th Cir. 1997), and “[q]uestions of fact capable of resolution
by the district court upon proper objection at sentencing can never constitute

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plain error,” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (per curiam)
(citing United States v. Mourning, 914 F.2d 699, 703 (5th Cir. 1990)).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Claiborne’s sentence.

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No. 10-51189

EDITH H. JONES, Chief Judge, concurring:
I concur in the per curiam opinion, which faithfully follows our twenty
year old precedent establishing that findings of fact by a district court are not
subject to reversal for "plain error." United States v. Lopez, 923 F.2d 47 (5th Cir.
1991), cert. denied, 500 U.S. 924, 111 S. Ct. 2032 (1991). But I am also
constrained to respond to Judge Prado's challenge to this precedent. For the
sake of brevity, I do so in short points.
First, plain error is by definition error so clear and obvious that the
district court should not have erred in the first place. United States v. Olano,
507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993). As the factfinder in sentencing,
the district court is not bound by the rules of evidence, and its findings are
shielded by the clear error standard even when an appellant preserves error for
appeal. Because so many sentencing findings amount to judgment calls, based
in part on the trial court's intimate knowledge of local probation and law
enforcement practices, it seems nearly inconceivable that we could deem their
factual findings "plainly erroneous" under the Olano definition. Further, to
allow appellate second-guessing when no factual error was pointed out below
erodes the distinction between plain error and clear error.
Second, restricting plain error review to issues of law is hardly unfair to
defendants. Under current sentencing procedures, each defendant and his
attorney has ample advance access to the PSR. They can respond directly to the
facts identified as pertinent in the PSR, subject, of course, to rebuttal by the
probation officer and the government. They are well aware of the district court's
fact finding duties and have the opportunity to prepare and persuade the district
court of their view of the facts. We ought to assume that counsel will have
conferred with the client about the facts concerning sentencing. It seems highly
unlikely that a competent counsel will fail to timely raise a factual objection to
an enhancement in the district court.
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Third, this court has, far more often than not, followed Lopez. See, e.g.,
United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011) (citing Lopez, 923 F.2d
at 50), and legions of unpublished Fifth Circuit decisions.1 That a few opinions
of this court fail to follow Lopez in the past twenty years says less about our
established court precedent than it does about the potential for error in the
increasingly complex law of federal sentencing.
Fourth, this case illustrates why we should not be in the business of
reviewing factfindings on appeal. The evidence relating to the foiled attempt to
escape from the patrol car is a videotape in which most of the action, admittedly,
is committed by Claiborne's co-defendant. The sequence of events was equally
obvious to Claiborne and his counsel as to the trial court, yet the defendant
failed to point out his alleged passivity to the district court. From what superior
vantage point can we say there is "no evidence" to support the enhancement,
when in fact Claiborne's seatbelt was found undone by the officers, and on the
videotape he responds "um-hmm" to an escape query from the other defendant?
The district court might have looked at this video more carefully if Claiborne had
raised the issue; had it done so, we would have no real basis to declare a fact
finding either way — supporting or rejecting an obstruction enhancement —
clear error. To apply "plain error" here would amount to our simply replacing
the factfinder's function with a de novo interpretation of the evidence.
Finally, the fulcrum of the desire to employ plain error review to
sentencing fact issues is the potential impact on the defendant's sentence if the

1
The majority of the recent unpublished opinions follow Lopez. See United States v.
Aguirre, No. 10-51167, 2012 WL 11046 *2 (5th Cir. Jan. 4, 2012); United States v. Marquez-
Murillo, No. 11-50281, 2011 WL 6934419 *1 (5th Cir. Dec. 30, 2011); United States v. Castillo,
445 Fed. Appx. 784, 784-85 (5th Cir. 2011); United States v. Salizar-Pro, 442 Fed. Appx. 908,
910 (5th Cir. 2011); United States v. Miller, 450 Fed. Appx. 336, 338-39 (5th Cir. 2011); United
States v. Candrick, 435 Fed. Appx. 404, 406 (5th Cir. 2011); United States v. Zamora-Melgoza,
396 Fed. Appx. 121, 122 (5th Cir. 2010); United States v. Mendoza, 395 Fed. Appx. 144, 145
(5th Cir. 2010).

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guidelines are misapplied. But the defendant's term of imprisonment is not the
only consideration relevant to the standard of review. I have already explained
why appellate courts are singularly ill-suited to reviewing unobjected-to facts
pertinent to sentencing. It is also important that the public, represented by the
government, be apprised of potential sentencing defects at the trial level, in
order to save resources and utilize law enforcement capabilities efficiently.
Every resentencing compelled following plain error review imposes costs and
dangers when a defendant is remitted from prison back (perhaps hundreds of
miles) to the sentencing court. Arguably, district courts spend more time trying
to foresee and prevent reversal based on the errors not pointed out to them. In
any event, they are blindsided and their schedules adversely affected by the
disorderliness of allowing criminal defendants to prevail on issues raised for the
first time on appeal. The balance of hardships is shared among the defendant,
the public and the courts, it seems to me, when the proper sentencing objections
are not raised in the trial court.
Because I contend that plain error review should not be applied to this
purely factual determination of obstruction of justice, I need only add that I
would be strongly disinclined to find plain error if we did use that standard.

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No. 10-51189

EDWARD C. PRADO, Circuit Judge, concurring:
I write separately to discuss the court’s review (or rather, the lack thereof)
of Claiborne’s claim that the district court erred in applying the obstruction of
justice enhancement under U.S.S.G. § 3C1.1.
Generally, failure to object to an error at the district court limits this
court’s review to plain error. United States v. Villegas, 404 F.3d 355, 358 (5th
Cir. 2005) (per curiam); see also Fed. R. Crim. P. 52(b). This standard requires
that the defendant show (1) error, (2) that is clear or obvious, (3) and that affects
his substantial rights; (4) if the elements are satisfied, this court may exercise
its discretion to remedy the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129,
135 (2009). In this case, the court declines to review Claiborne’s claimed error
as to the application of the obstruction of justice enhancement based on the rule
from United States v. Lopez, 923 F.2d 47 (5th Cir. 1991) (per curiam), that
“‘[q]uestions of fact1 capable of resolution by the district court upon proper

1
In her concurrence, Chief Judge Jones emphasizes the special role the sentencing
court plays in finding facts, a role which I do not challenge. It should be noted, however, that
the issue of whether the determination that § 3C1.1’s requirements are met is not so clearly
a question of fact. The court correctly, based on this circuit’s earliest-case controls rule, holds
that “‘[a] district court’s determination that a defendant has obstructed justice is a factual
finding.’” Per Curiam Op., supra, at 5 (quoting United States v. Cisneros, 112 F.3d 1272, 1279
(5th Cir. 1997)); cf. United States v. Paden, 908 F.2d 1229, 1236 (5th Cir. 1990) (“[T]he district
court’s determination [that a two-level enhancement under § 3C1.1] is subject to the ‘clearly
erroneous’ standard of review.”). However, there is an intra- and an inter-circuit split as to
whether a § 3C1.1 determination is to be reviewed as a question of fact or as a question of law.
Compare Cisneros, 112 F.3d at 1279 (question of fact) with United States v. Brown, 470 F.3d
1091, 1093–94 (5th Cir. 2006) (question of law: “For an obstruction-of-justice enhancement,
the district court’s factual findings—its findings as to what acts were performed—are reviewed
only for clear error. . . . A ruling that those findings permit an obstruction-of-justice
enhancement is a question of law, reviewed de novo.”); compare United States v. Mabie, 663
F.3d 322, 334 (8th Cir. 2011) (determination that the § 3C1.1 enhancement applies is a
question of law/reviewed de novo), United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011)
(same), United States v. Taylor, 637 F.3d 812, 817 (7th Cir. 2011); United States v. Cordova
Barajas, 360 F.3d 1037, 1043 (9th Cir. 2004), United States v. Villarman-Oviedo, 325 F.3d 1,
16 (1st Cir. 2003), United States v. Brown, 321 F.3d 347, 351 (2d Cir. 2003), and United States
v. Jones, 308 F.3d 425, 427 (4th Cir. 2002), with United States v. Jackson-Randolph, 282 F.3d
369, 390 (6th Cir. 2002) (question of fact reviewed for clear error); see also United States v.
Henry, 557 F.3d 642, 645 (reviewed for due deference); United States v. Bedford, 446 F.3d
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objection at sentencing can never constitute plain error.’” Per Curiam Op.,
supra, at 5–6 (quoting Lopez, 923 F.2d at 50) (footnote added). Yet, we have not
relied exclusively on this rule in reviewing unobjected-to applications of
Guidelines enhancements.
In United States v. Pattan, 931 F.2d 1035 (5th Cir. 1991), this court
addressed, in the context of the district court’s enhancement under § 3C1.1,
“whether, under the plain error standard, [it] should evaluate the adjustments
based solely on the factual findings actually made by the trial judge or whether
[it] should consider the entire record when [it] evaluate[s] the adjustments.” Id.
at 1042–43. It resolved that, “[g]iven the minimal nature of our review, we find
it appropriate to consider all of the evidence in the record supporting the
adjustments, and will uphold the adjustments if the record as a whole
demonstrates that the adjustments did not result in a miscarriage of justice.”
Id. at 1043. Plain error has previously been described by this court as “error so
obvious that our failure to notice it would seriously affect the fairness, integrity,
or public reputation of the judicial proceedings and result in a miscarriage of
justice.” United States v. Peltier, 505 F.3d 389, 391 n.3 (5th Cir. 2007)
(alteration and internal quotation marks omitted). My reading of Pattan is that
unobjected-to errors in the application of the Guidelines are to be reviewed
under the typical plain error standard of Rule 52(b).
Neither the rule from Lopez nor the plain error review suggested in
Pattan, however, has been consistently adhered to by our court; in fact, this
court has more often applied plain error analysis to review of an unobjected-to

1320, 1324 (10th Cir. 2006) (mixed question of law and fact that is reviewed for clear error).
As there is substantial authority that § 3C1.1 determinations are, at the very least, mixed
question of law and fact that are to be reviewed de novo, Chief Judge Jones overstates the
interference with district courts that our court would have by reviewing these types of
questions.

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enhancement under § 3C1.1.2 Compare United States v. Akinosho, 285 F. App’x
128, 130 (5th Cir. 2008) (applying Lopez) with United States v. Stevenson, 97 F.
App’x 468, 470 (5th Cir. 2004) (conducting a typical plain error analysis) and
United States v. Huerta, 182 F.3d 361, 366 (5th Cir. 1999) (same). Where, as
here, two lines of precedent conflict, our rule is to follow the earlier opinion.
United States v. Wheeler, 322 F.3d 823, 828 n.1 (5th Cir. 2003). Therefore,
because Lopez predates Pattan, the court is correct to apply Lopez and foreclose
review. Nonetheless, I believe the Lopez rule to be inferior and think that our
review of unobjected-to enhancement under the Guidelines ought to be for plain
error.
The Supreme Court has stated that “[a] rigid and undeviating judicially
declared practice under which courts of review would invariably and under all
circumstances decline to consider all questions which had not previously been
specifically urged would be out of harmony with . . . the rules of fundamental
justice.” United States v. Olano, 507 U.S. 725, 732 (1993) (alteration and ellipsis
in original) (internal quotation marks omitted). In so doing, it drew on its prior
opinion in Hormel v. Helvering, 312 U.S. 552 (1941).

Ordinarily an appellate court does not give consideration to issues
not raised below. For our procedural scheme contemplates that
parties shall come to issue in the trial forum vested with authority
to determine questions of fact. This is essential in order that parties

2
Chief Judge Jones states in her concurrence that “[t]he majority of the recent
unpublished opinions follow Lopez,” but she does not confine her universe to the specific
context of the obstruction of justice enhancement under § 3C1.1; she also includes a host of
other determinations made by district judges under the Guidelines. See Jones Op., supra, at
2 n.1. I am not suggesting that every determination made under the Guidelines needs to be
reviewed for plain error, but there is a distinction between “minor, detailed, [and] interstitial
question[s] of sentencing law,” which are given “due deference,” Buford v. United States, 532
U.S. 59, 64 (2001), and “interpretive question[s]” requiring application of the Guidelines such
as the enhancing a defendant’s sentence for obstructing justice or making a “downward
adjustment for acceptance of responsibility.” See United States v. McLaughlin, 378 F.3d 35,
38 n.1 (1st Cir. 2004); see also United States v. Vasquez, 389 F.3d 65, 73–75 (2d Cir. 2004).

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may have the opportunity to offer all the evidence they believe
relevant to the issues which the trial tribunal is alone competent to
decide; it is equally essential in order that litigants may not be
surprised on appeal by final decision there of issues upon which
they have had no opportunity to introduce evidence.

Hormel, 312 U.S. at 556. However, as the Court went on to say, “[r]ules of
practice and procedure are devised to promote the ends of justice, not to defeat
them.” Id. at 557. Continued adherence to the Lopez rule does just that. It
defeats the ends of justice by eschewing plain error’s balance of the competing
concerns that errors be pressed in the district court before being pursued here
and that our rules do not allow for miscarriages of justice.3 The Lopez rule
replaces this nice balance with a rigid rule that insulates from this court’s
review misapplication of sentencing enhancements.
Moreover, the Lopez rule puts us out of step with our sister circuits, as no
other circuit court adheres to the Lopez rule. Each of the other circuit courts has
articulated that unobjected-to Guideline enhancements are to be reviewed for
plain error.4 In United States v. Montgomery, 379 F. App’x 527 (6th Cir. 2010),
the Sixth Circuit noted, “[s]everal circuits have held that ‘questions of fact

3
Proving plain error is no easy feat. As this court has previously stated, “[t]he burden
of showing plain error is a heavy one.” United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir.
1994) (internal quotation marks omitted). It requires error that is “so obvious and substantial
that failure to notice and correct it would affect the fairness, integrity or public reputation of
judicial proceedings.” Lopez, 923 F.2d at 50. The “high bar” erected, United States v. Morin,
627 F.3d 985, 1000 (5th Cir. 2010) (internal quotation marks omitted), gives defendants great
incentive to raise error before the district court while allowing this court to step in and correct
those substantial errors that demand amelioration.
4
See, e.g., United States v. Sahakian, 446 F. App’x 861, 863 (9th Cir. 2011); United
States v. Jumah, 599 F.3d 799, 811 (7th Cir. 2010); United States v. Poe, 556 F.3d 1113, 1128
(10th Cir. 2009); United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006); United States v.
Villafane-Jimenez, 410 F.3d 74, 84 n.9 (1st Cir. 2005); United States v. Dixon, 360 F.3d 845,
847 (8th Cir. 2004); In re Sealed Case, 349 F.3d 685, 690 (D.C. Cir. 2003); United States v.
Brennan, 326 F.3d 176, 200 (3d Cir. 2003); United States v. Clark, 28 F. App’x 34, 37 (2d Cir.
2001); United States v. Wells, 163 F.3d 889, 900 (4th Cir. 1998); United States v. Barajas-
Nunez, 91 F.3d 826, 830 (6th Cir. 1996).

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capable of resolution by the district court upon proper objection at sentencing
can never constitute plain error.’” Id. at 530 (alteration omitted) (quoting Lopez,
923 F.2d at 50) (citing United States v. Bush, 405 F.3d 909, 922 (10th Cir. 2005);
United States v. Elion, 15 F. App’x 14, 16 (1st Cir. 2001); United States v. Alford,
25 F.3d 1041 (4th Cir 1994)). In Montgomery, the court chose not to “go that far”
and resolved the case on plain error analysis. Montgomery, 379 F. App’x at 530.
Additionally, since Bush, Elion, and Alford, each of these circuits has used the
typical plain error review in analyzing unobjected-to enhancements under
§ 3C1.1. See United States v. Salazar, 446 F. App’x 110, 112 (10th Cir. 2011);
United States v. Shawakha, 410 F. App’x 658, 663–64 (4th Cir. 2011); United
States v. Villafane-Jimenez, 410 F.3d 74, 84 n.9 (1st Cir. 2005). It is clear then
that the courts that have dabbled with the Lopez rule, including our own, have
moved away from it.
Finally, this is not merely an esoteric argument about the role of this court
in reviewing sentencing decisions of the district courts or about the proper
balance between competing procedural concerns. Failure to review Claiborne’s
claim that the district court misapplied the obstruction of justice enhancement
will cost Claiborne months, if not years, of additional time in prison because in
my opinion, plain error exists on these facts.
The obstruction enhancement requires willful conduct on the part of the
defendant to whom it is applied. U.S.S.G. § 3C1.1. This court has previously
found such willful conduct where the defendant “actively participated” in the
escape attempt. See United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir.
1997).5 Given that Claiborne did not unbuckle his seatbelt, agree to help Weldon

5
See also United States v. Whorton, 79 F. App’x 1, at *1 (5th Cir. 2003) (per curiam)
(affirming the application of the obstruction enhancement where the defendant had scraped
mortar from the bricks near his bed and then covered the scraped area with toothpaste
because the defendant acted “voluntarily and intentionally” (internal quotation marks
omitted)); United States v. Barnum, 15 F.3d 181 (5th Cir. 1994) (per curiam) (affirming the

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No. 10-51189

escape, respond to his questions about escaping, or talk about escaping, there is
no evidence that Claiborne plotted an escape or aided and abetted Weldon in
doing so. Cf. Cisneros, 112 F.3d at 1279–80. Therefore, it was clear error for
the district court to have applied the obstruction enhancement to Claiborne.
This finding does not end the inquiry. Because Claiborne failed to object
to the obstruction enhancement’s application at the district court, he must show
a “reasonable probability that, but for the district court’s misapplication of the
Guidelines, [Claiborne] would have received a lesser sentence.” Villegas, 404
F.3d at 364. Absent the misapplication of the obstruction enhancement,
Claiborne’s total offense level would have been 25 and his Guidelines range
would have been 57 to 71 months. See U.S.S.G. ch. 5, pt. A. Although the
correct and incorrect Guidelines ranges overlap, Claiborne’s sentence was not in
the overlapping range. His 78-month term of imprisonment was seven months
greater than the maximum recommended sentence by the correct Guidelines
range.

The facts of this case lead me to conclude that there is a “reasonable
probability” that Claiborne would have received a lesser sentence absent the
district court’s misapplication of the obstruction enhancement. The district
court neither indicated that it would have imposed the same sentence as an
alternative sentence nor expressed an intent to go outside the Guidelines range.
Cf. United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008) (stating that when
the district court imposes a non-Guidelines sentence that does not directly result
from an error in calculating the Guidelines, a sentence may be affirmed). In fact,

application of the obstruction enhancement where shoes were delivered to the defendant while
he was in custody that contained hacksaw blades hidden in the soles because although the
defendant claimed no knowledge of the shoes, the evidence supported the logical and
reasonable inference that the defendant participated in a scheme to have the shoes containing
the blades delivered to him).

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No. 10-51189

the district court specifically denied the Government’s request for an
above-Guidelines sentence, stating that it was not departing from the Guidelines
because the range was “fair and reasonable.” Therefore, I would find the third
prong of plain error—effect on defendant’s substantial rights— met. See United
States v. Carrizales-Jaramillo, 303 F. App’x 215, 217 (5th Cir. 2008) (per curiam)
(finding reversible plain error where the incorrect Guidelines range (30–37
months) and correct Guidelines range (24–30 months) overlapped by one month
but the defendant’s sentence (31 months) was not within the correct Guidelines
range, and the district court did not indicate that it would have imposed the
same sentence or express an intent to sentence above the Guidelines range).
Finally, the sentencing error “seriously affected the fairness, integrity, or public
reputation of judicial proceedings” because it “clearly affected the [defendant’s]
sentence.” United States v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007)
(alteration and internal quotation marks omitted).
Although the court applies the correct rule under our earliest-case-controls
rule, the rule applied is a bad one and one that for Claiborne, results in a
miscarriage of justice.

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