     Case: 12-50710       Document: 00512211479         Page: 1     Date Filed: 04/17/2013




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

                                                                            FILED
                                                                           April 17, 2013
                                     No. 12-50710
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EDUARDO DE LA CRUZ-RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1928-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Eduardo De La Cruz-Rodriguez (De La Cruz) appeals the sentence
imposed following his guilty plea to conspiracy to possess with intent to
distribute marijuana and possession with intent to distribute marijuana. The
district court sentenced De La Cruz to 35 months of imprisonment on each
count, to run consecutively, for a total of 70 months and a three-year term of
supervised release on each count, to be served concurrently.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
     Case: 12-50710        Document: 00512211479         Page: 2     Date Filed: 04/17/2013

                                        No. 12-50710

       De La Cruz argues that his sentence is procedurally unreasonable because
it is based on a clearly erroneous finding that he lied either to the district court
or to the probation officer about his employment status between 2008 and the
time of his arrest. We reject his argument that he preserved this issue for
appeal. Cf. United States v. Gerezano-Rosales, 692 F.3d 393, 399 (5th Cir.
2012)(describing circumstances where objection would be futile)1. Accordingly,
we review De La Cruz’s argument for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Lopez-Velasquez, 526 F.3d 804, 806
(5th Cir. 2008).
       Our review of the record as a whole shows that the district court’s finding
is plausible and, thus, not clearly erroneous.                     See United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Because there is no
clearly erroneous fact, De La Cruz cannot show that the district court clearly or
obviously procedurally erred by basing the sentence on a clearly erroneous fact.2
See Puckett, 556 U.S. at 135. Moreover, nothing in the context of the sentencing
record or in the district court’s statements of its reasons for the sentence
indicates that the district court selected the sentenced imposed based on its
belief that De La Cruz lied.
       AFFIRMED.




       1
          Unlike the situation in that case, here the district judge did not imply that raising
an objection would result in a lengthier sentence.
       2
           Also as a result, the standard of review is not outcome-determinative here.

                                               2
