     Case: 14-50570       Document: 00512956612         Page: 1     Date Filed: 03/04/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-50570
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             March 4, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

MAURICIO GUILLERMO MORAL-SALAZAR,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-211-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Mauricio Guillermo Moral-Salazar challenges on two bases his 51-month
sentence, which falls within the advisory Sentencing Guidelines sentencing
range, and was imposed following his conviction for illegal reentry after
deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1)-(2).
       Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50570

under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). 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).
      First, Moral maintains his sentence is procedurally unreasonable. He
claims the court erred in denying a reduction in his offense level under
Guideline § 3E1.1 for acceptance of responsibility, asserting it relied on
erroneous facts in denying the reduction. He acknowledges the pre-sentence
investigation report contained information showing involvement in a protest
or riot at a detention center, but claims he demonstrated these facts were
materially untrue.
      Moral arguably failed to raise these issues in district court. If he failed
to do so, review is only for plain error. E.g., United States v. Medina-Anicacio,
325 F.3d 638, 647 (5th Cir. 2003). It is not necessary, however, to resolve any
dispute over the standard of review because, as discussed infra, Moral’s
challenge fails under the usual standard of review for denials of an acceptance-
of-responsibility reduction. E.g., United States v. Crawley, 463 F. App’x 418,
420 n.1 (5th Cir. 2012) (Where “claims fail regardless of the standard of review
utilized, we need not decide [the proper standard of review]”.).
      Guideline § 3E1.1(a) directs the sentencing court to reduce a defendant’s
offense level by two levels “[i]f the defendant clearly demonstrates acceptance
of responsibility for his offense”. However, if a defendant fails to withdraw
from criminal conduct or associations, the court may deny a reduction for
acceptance of responsibility. U.S.S.G. § 3E1.1, cmt. n.1(B); United States v.
Puckett, 505 F.3d 377, 387 (5th Cir. 2007).



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                                  No. 14-50570

      A court’s refusal to grant an acceptance-of-responsibility reduction is
reviewed under a standard even more limited than for clear error, e.g., United
States v. Buchanan, 485 F.3d 274, 287 (5th Cir. 2007); the denial will not be
reversed unless it is “without foundation”, United States v. Juarez-Duarte, 513
F.3d 204, 211 (5th Cir. 2008) (quoting United States v. Anderson, 174 F.3d 515,
525 (5th Cir. 1999)).
      The PSR recommended against the reduction under Guideline § 3E1.1
based on Moral’s, along with other detainees’, refusal to return to his cell
despite repeated orders to do so during a riot. The detention-center employees
used chemical agents to suppress the incident. Because the record supports
the finding that Moral had not withdrawn from criminal conduct, the denial of
an acceptance-of-responsibility reduction was not “without foundation”. Id.
      Moral also challenges the substantive reasonableness of his sentence,
asserting the court failed to consider the nonviolent nature of his crime-of-
violence conviction and the loss of the acceptance-of-responsibility reduction.
      Because Moral did not object to the substantive reasonableness of his
sentence, review is only for plain error. E.g., United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). Under that standard, Moral must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the error, but should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. He fails to show clear or
obvious error.
      Moral’s contention is unavailing because within-Guidelines sentences
are presumed reasonable. E.g., United States v. Mondragon-Santiago, 564
F.3d 357, 360 (5th Cir. 2009). The district court considered Moral’s stated
bases in mitigation, the affidavit of his wife discussing the prior conviction, the



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sentencing factors of 18 U.S.C. § 3553(a), and the Guidelines, and concluded
that a 51-month sentence was reasonable. Moral’s claim that the court should
have sentenced him below the Guidelines-sentencing range merely reflects his
disagreement with the propriety of his sentence, which is insufficient to rebut
the presumption of reasonableness. E.g., United States v. Ruiz, 621 F.3d 390,
398 (5th Cir. 2010); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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