Case: 17-30280 Document: 00514281870 Page: 1 Date Filed: 12/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30280 FILED
Summary Calendar December 21, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WADE BERGERON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:16-CR-32-1
Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
Wade Bergeron pleaded guilty pursuant to a plea agreement to a single
count of deprivation of rights under color of law. Pursuant to U.S.S.G. § 5K1.1,
the district court sentenced Bergeron below the advisory guideline range to 48
months of imprisonment. Bergeron appeals his sentence, arguing that the
district court committed procedural error by failing to conduct an
individualized inquiry into his case and by failing to state the basis for the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30280
downward departure. He also contends that the sentence is substantively
unreasonable.
To preserve error, Bergeron was required “to alert the district court to
the nature of the alleged error and to provide an opportunity for correction.”
United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Bergeron did not
object to the district court’s alleged procedural error. Therefore, we review for
plain error. To show plain error, the appellant must show a forfeited error that
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
The record shows that the district court made an individualized
assessment of the facts presented based on appropriate sentencing factors. See
Gall v. United States, 552 U.S. 38, 50 (5th Cir. 2007); see also United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Moreover, the record
shows that the district court was aware of its discretionary authority to
evaluate the defendant’s case and make its own § 5K1.1 determination,
irrespective of the Government’s § 5K1.1 motion. cf. United States v. Johnson,
33 F.3d 8, 10 (5th Cir. 1994). Bergeron has not shown error, plain or otherwise,
in the district court’s imposition of the sentence. See Puckett, 556 U.S. at 135.
As for Bergeron’s challenge to the substantive reasonableness of his
sentence, “[d]istrict courts have almost complete discretion to determine the
extent of a departure under § 5K1.1.” United States v. Hashimoto, 193 F.3d
840, 843 (5th Cir. 1999). A defendant can appeal the extent of such a departure
only it if was imposed in violation of the law. Id.; see also United States v.
Desselle, 450 F.3d 179, 182 (5th Cir. 2006). However, “we do not review the
district court's decision to limit a § 5K1.1 departure for reasonableness,” absent
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a challenge to the sentence as a violation of the law. See United States v.
Malone, 828 F.3d 331, 342 (5th Cir. 2016). Bergeron does not argue that the
district court’s departure sentence was imposed in violation of the law, or that
it was based on the consideration of non-assistance-related factors. Therefore,
his reasonableness challenge is unavailing. See id.; see also Hashimoto, 193
F.3d at 843.
AFFIRMED.
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