UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10282
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE ORELLANA,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
(3:94-CR-348-T)
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February 21, 1996
Before GARWOOD, EMILIO M. GARZA and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-appellant George Orellana appeals his sentence for
illegal possession of social security documents and bribery of a
United States official, offenses to which he had pleaded guilty.
Orellana’s only contention on appeal is that the district
court, in downwardly departing from the U.S.S.G. guideline range on
the basis of the Government’s motion under U.S.S.G. § 5K1.1 for
downward departure based on Orellana’s substantial assistance,
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
failed to independently determine the extent of the appropriate
section 5k1.1 departure but instead merely accepted the
Government’s recommendation that the downward departure be one
guideline offense level, contrary to United States v. Johnson, 33
F.3d 36, 41 (5th Cir. 1994). As the Government urges, and as
Orellana concedes in his brief and at oral argument, this
contention was not raised below and may be reviewed only under the
plain error doctrine.1 See United States v. Calverley, 37 F.3d 160
(5th Cir. 1994); United States v. Vontsteen, 950 F.2d 1086, 1091
(5th Cir.), cert. denied, 112 S.Ct. 3039 (1994); United States v.
Garcia-Pillado, 898 F.2d 36 (5th Cir. 1990).
We assume, arguendo, that the first three requirements of
plain error review are met, viz: that there was error, that it was
plain and that it to some extent affected Orellana’s’s substantial
rights.2 Upon finding these three elements satisfied, an appellate
court has discretion to grant relief, and that discretion should be
exercised favorably to the appellant “only if” the forfeited error
“seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” Calverley, at 164. Exercising our
discretion under this standard, we conclude that this is an
inappropriate case in which to grant relief.
Orellana received a 24-month sentence. Calculated correctly
under the guidelines, his adjusted base offense level was 18 and
1
Indeed, Orellana never clearly requested the district court
to grant a greater downward departure under section 5K1.1 than that
recommended by the Government.
2
Especially as to the latter two, this assumption may well be
something of a stretch.
2
his criminal history category was I, which produced a guidelines
confinement range of 27 to 33 months. The Government’s section
5K1.1 motion suggested that the requested downward departure be by
one offense level, which would produce an adjusted base offense
level of 17, and a guideline range of 24 to 30 months. Had a two-
offense level downward departure been granted, the guideline range
would have been 21 to 27 months; had a three-offense level downward
departure been granted, the guideline range would have been 18 to
24 months.3 Cf. Garcia-Pillado at 39. There was never any dispute
concerning the nature, extent or results of Orellana’s substantial
assistance, nor any concerning the facts relevant to the
considerations listed in section 5K1.1(a).4 The principal thrust
of Orellana’s sentencing presentation related to his clean record,
good character and status as a hard-working, church-attending
person who supported his family and was involved in the offenses as
a result of severe financial pressure to pay for a serious
operation that his father required and to have funds for medical
expenses for his mother’s heart condition, which would require
surgery.5 These are the factors——not factors properly relevant to
determining the extent of departure under section 5K1.1(a)——which
appear to have motivated the district court’s remarks at sentencing
3
The statutory maximum for the offenses was 20 years.
4
Orellana’s cooperation resulted in his sister’s pleading
guilty; defendants in the other three related cases pleaded guilty
without regard to his cooperation. We cannot say that there is
anything unreasonable or unusual about only departing one level
under section 5K1.1 in these circumstances.
5
Orellana also urged that “he has taken that first step to
rehabilitation, accepting responsibility for his acts.”
3
that “Mr. Orellana, let me assure you that you have touched my
heart” and “I firmly believe that Mr. Orellana is a good person”.
Exercising our discretion, we decline to grant relief as to
the forfeited claim of error. Orellana’s conviction and sentence
are therefore
AFFIRMED.
4