    Case: 14-11023    Document: 00513193469     Page: 1   Date Filed: 09/15/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                 No. 14-11023                     United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                 September 15, 2015
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                                           Plaintiff−Appellee,

versus

GERARDO PRECIADO-DELACRUZ,

                                           Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Gerardo Preciado-Delacruz appeals his sentence for possession with
intent to distribute marihuana. First, he complains that the district court vio-
lated his Fifth Amendment right against self-incrimination by denying him a
downward adjustment for acceptance of responsibility after he refused to speak
openly about relevant conduct. Second, he claims that the above-guidelines
sentence was substantively unreasonable. We affirm.
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                                 No. 14-11023
                                       I.
      In October 2013, acting on a confidential source’s tip, DEA officers staked
out Cesar Loma’s house in Fort Worth, Texas, to investigate marihuana traf-
ficking. On October 11, officers saw Preciado-Delacruz and an associate, Pedro
Lopez-Maya, arrive in a truck, enter the house with a box, meet with Loma for
a short time, and exit with a grocery bag. Officers stopped the truck after it
left, and Lopez-Maya as the driver consented to a search. Inside, the officers
found about seven pounds of marihuana and the bag containing over $14,000.
A later search of the house uncovered a gun and fourteen more pounds of mari-
huana; Preciado-Delacruz’s fingerprints were discovered on the packaging.
Preciado-Delacruz pleaded guilty of one count of possession with intent to dis-
tribute marihuana in violation of 21 U.S.C. § 841(a)(1).

      A probation officer met with Preciado-Delacruz to compile his presen-
tence investigation report (“PSR”). Applying the 2013 U.S. Sentencing Guide-
lines (the “Guidelines”), the PSR reflected a base offense level of 18, assessed
a two-level increase because Loma possessed a dangerous weapon during the
drug deal, and concluded that the criminal-history category was I. Impor-
tantly, the PSR advised the district court against awarding a two-level reduc-
tion for acceptance of responsibility under U.S.S.G. § 3E1.1. The probation
officer provided several reasons why: Preciado-Delacruz initially had said that
“he just wants to serve his time for the offense and go home, rather than
answer questions about his involvement.” When he did agree to answer ques-
tions, he was hesitant to talk about the offense and minimized his involvement
in the drug deliveries, evidence of which indicated that his involvement was
much greater. He first said that he had touched the marihuana only to see
what it was, then revised that to say he loaded the packages into the truck.
Otherwise, he refused to discuss any details other than those specifically
related to the charged crime.
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                              No. 14-11023
      Without the adjustment under § 3E1.1, the PSR correctly calculated the
advisory sentencing range as 33 to 41 months. Preciado-Delacruz filed timely
objections, including one for withholding the acceptance-of-responsibility
adjustment.

      At sentencing, the district court adopted the PSR’s factual findings.
Preciado-Delacruz renewed his objection to the withholding of the acceptance-
of-responsibility adjustment, and the court overruled it. The court then cor-
rectly calculated the Guidelines’ range but indicated afterwards that it
intended to impose an outside-the-guidelines sentence. After hearing from
defense counsel and reviewing the file, the court concluded that it would depart
upward.

      Accounting for the statutory factors in 18 U.S.C. § 3553(a), the court
explained that it was imposing an above-guidelines sentence in light of
Preciado-Delacruz’s extensive history of illegal entry into the United States:
Border Patrol agents had apprehended him seven times for illegally entering
the country, and he was present illegally at the time of the offense. But in
describing that history, the court misstated two facts. First, it mistakenly
stated that Preciado-Delacruz had been convicted earlier of illegal reentry; in
fact, his conviction was for illegal entry, for which he served 120 days. Second,
the court noted that he had been forcibly removed from the United States a
number of times. But in truth, the government had removed him only once; on
six other occasions, Preciado-Delacruz was granted voluntary departure.
Defense counsel raised no objection nor offered any correction.

      The court imposed a sentence of sixty months—the statutory
maximum—and two years’ supervised release. It then described the standard
conditions of supervised release, informed Preciado-Delacruz of the right to
appeal, and answered a few requests from counsel. Finally, just before the

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                               No. 14-11023
sentencing hearing adjourned, defense counsel stated the following objection:
“And for the record, my client respectfully objects to the sentence as substan-
tively unreasonable.”

                                            II.
       Ordinarily, “[t]his court reviews a district court’s refusal to reduce a
defendant’s offense level for acceptance of responsibility under USSG § 3E1.1
with a standard ‘even more deferential than a purely clearly erroneous stan-
dard.’” United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003) (citing
United States v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995)). We will not
second-guess the decision unless it is without foundation. Id. But when faced
with a preserved constitutional challenge to the Guidelines’ application, our
review is de novo. See United States v. Hernandez, 633 F.3d 370, 373 (5th Cir.
2011); United States v. Flores-Alejo, 531 F. App’x 422, 424 & n.1 (5th Cir. 2013).

       On the challenge to substantive reasonableness, we normally review for
abuse of discretion, accounting for the totality of the circumstances. See Gall
v. United States, 552 U.S. 38, 51 (2007). But that standard does not apply here
because Preciado-Delacruz failed properly to preserve his claim. “To preserve
error, an objection must be sufficiently specific 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). Defense counsel’s
generic objection to substantive reasonableness does not meet that standard
because it failed to cite any of the specific grounds now raised on appeal. See
United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Thus, our review is
for plain error. 1


       1The government’s failure to urge for plain-error review does not obviate our duty to
apply the appropriate standard. United States v. Pierre, 958 F.2d 1304, 1311 n.1 (5th Cir.
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                                       No. 14-11023
                                            III.
                                              A.
       Preciado-Delacruz asks us to answer in his favor a question the Supreme
Court deliberately has left unresolved: whether, consistently with the Fifth
Amendment, a court may rightfully consider a defendant’s silence or refusal to
answer questions about relevant conduct when deciding whether to grant
§ 3E1.1’s downward adjustment for acceptance of responsibility. See Mitchell
v. United States, 526 U.S. 314, 330 (1999). Binding precedent of this court,
however, dooms Preciado-Delacruz’s theory.

        In United States v. Mourning, 914 F.2d 699, 706 (5th Cir. 1990), we faced
the same claim raised here under an earlier version of the Guidelines. 2 We
held that rewarding a defendant who expresses contrition and cooperates with
the government is not the same as compelling him to incriminate himself. Id.
at 706–07. “To hold the acceptance of responsibility provision unconstitutional
would be to say that defendants who express genuine remorse for their actions
can never be rewarded at sentencing. This the Constitution does not require.”
Id. at 707 (quoting United States v. Henry, 883 F.2d 1010, 1012 (11th Cir.
1989)).    3   That holding applies squarely here. 4 Consequently, any inference
that the district court drew from the defendant’s silence for purposes of § 3E1.1
was permissible. That, coupled with the other behaviors described in the PSR
that are inconsistent with the acceptance of responsibility, suggests that the




1992) (en banc).
       2Mourning was statutorily overruled on other grounds as explained in United States
v. Stewart, 93 F.3d 189, 195 (5th Cir. 1996).
       3  Indeed, a contrary rule would run counter to the principles undergirding all plea
agreements, which are themselves offers of a benefit in exchange for waiving constitutional
rights.
        4 See White v. Woodall, 134 S. Ct. 1697, 1703 n.3 (2014) (noting that the Court has yet

to resolve the issue and that courts of appeals appear divided).
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                               No. 14-11023
decision to withhold the downward adjustment was not without foundation.

                                        B.
      Preciado-Delacruz relies on the district court’s apparent factual mis-
takes as rendering his sentence substantively unreasonable. Those errors,
however, could have been corrected during sentencing, yet Preciado-Delacruz
raised no objection. “Questions of fact capable of resolution by the district court
upon proper objection at sentencing can never constitute plain error.” United
States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Thus they are no basis for
overturning the sentence. Further, Preciado-Delacruz claims that the court
failed properly to weigh the sentencing factors in 18 U.S.C. § 3553(a). But upon
review of the sentencing hearing, we see no clear or obvious error in how the
court determined and explained the sentence. See United States v. Peltier, 505
F.3d 389, 392–93 (5th Cir. 2007). The court considered the § 3553(a) factors,
and the sentence does not exceed the statutory maximum. As a result, the
above-guidelines sentence was not plainly erroneous. See id. at 393–94; United
States v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009).

      AFFIRMED.




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