     Case: 15-10076      Document: 00513458252         Page: 1    Date Filed: 04/08/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                       No. 15-10076                      United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                    April 8, 2016
                                                                           Lyle W. Cayce
                Plaintiff - Appellee                                            Clerk

v.

EDGAR DALMIRA DIAZ,

                Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:13-CR-248


Before ELROD, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
           Edgar Dalmira Diaz appeals his sentence following his guilty-plea
conviction for malicious use of explosive materials. Diaz challenges the district
court’s denial of the Government’s motion for a U.S.S.G. § 5K1.1 downward
departure based on Diaz’s substantial assistance to authorities. Finding no
error, we AFFIRM the district court’s judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10076
      Diaz contends, under our precedent, that the district court erred in
denying the § 5K1.1 motion by considering the severity of his offense rather
than considering factors related to his substantial assistance to the
Government. See United States v. Desselle, 450 F.3d 179 (5th Cir. 2006). These
arguments were not asserted by Diaz before the district court; therefore, plain-
error review is appropriate. See United States v. Izaguirre-Losoya, 219 F.3d
437, 441 (5th Cir. 2000). To establish plain error, a defendant must show that
“(1) there is an error, (2) the error is clear or obvious, and (3) the error affects
his substantial rights.” United States v. Coil, 442 F.3d 912, 916 (5th Cir. 2006).
If those three conditions are satisfied, this court may grant relief if “the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
      Diaz has not shown that the district court committed plain error in
denying the motion. The plain language of U.S.S.G. § 5K1.1 states, first, that
the court may depart from the guidelines. If the district court finds departure
warranted, the guideline subsequently instructs that the district court’s
reasons for determining the appropriate reduction under the guideline may
include consideration of the five enumerated factors. U.S.S.G. § 5K1.1(a). The
parties dispute whether a district court's initial decision whether to depart is
guided by the five enumerated factors. We need not decide that question,
however, because assuming those assistance-based factors must be considered,
the district court did consider them here.
      While Diaz urges us to find that the district court focused only on his
crime—as opposed to focusing on any of § 5K1.1’s enumerated factors—we
cannot; the record simply offers no support for his argument. Instead, the
transcript of Diaz’s sentencing hearing demonstrates that before denying the
Government’s motion for downward departure, the district court did in fact
consider the nature, extent, and significance of his assistance to authorities in
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                                  No. 15-10076
this case. See U.S.S.G. § 5K1.1, comment (backg’d); United States v. Johnson,
33 F.3d 8, 9 (5th Cir.1994). In fact, the district court considered Diaz’s
assistance to the Government on at least three occasions during the sentencing
hearing. In one of those instances, the district court provided the following
explanation:
      I think, as [Diaz’s Counsel] always does, she has put forth the
      most eloquent argument for why I should consider [the § 5K1.1
      motion]. . . . I'm going to deny the government’s request for
      substantial assistance. I don’t think I see it in this case. I know
      you were cooperative from the beginning and perhaps –

                                     ....

      I don't think substantial assistance is appropriate. . . . [R]ight
      now I will deny the motion for substantial assistance under the
      circumstances. The appropriate sentence in this case, Mr. Diaz,
      under all of the circumstance[s], regardless of the government’s
      position that it was an aberrant situation that in their view you
      substantially assisted them, none of that outweighs the damage
      here and the harm that you caused to all these other people and
      the amount of money that’s been incurred by virtue of your
      actions for restitution, $1.5 million. So in my view, the Court’s
      view, the only appropriate sentence in this case to carry out the
      purposes of our sentencing statute is the minimum which is the
      60 months in prison.

      Thus, it is clear from the record that the district court did not err, plainly
or otherwise. The district court’s judgment is therefore affirmed.
      AFFIRMED.




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