     Case: 18-41021      Document: 00515115237         Page: 1    Date Filed: 09/12/2019




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

                                      No. 18-41021                          FILED
                                                                   September 12, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee

v.

ENRIQUE HUERTA, JR.,

               Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:18-CR-319-2


Before STEWART, Chief Judge, and BARKSDALE and COSTA, Circuit
Judges.

PER CURIAM:*
       Enrique Huerta pleaded guilty to conspiring to possess with intent to
distribute 500 grams or more of methamphetamine.                     The district court
sentenced him to 180 months in prison, which was slightly below the
Guidelines range it adopted (188 to 235 months). That Guidelines range did
not include a reduction for acceptance of responsibility. On appeal, Huerta
argues for the first time that the government breached the plea agreement by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-41021
failing to recommend that Huerta receive credit for acceptance of
responsibility. Finding no obvious breach by the government, which the plain-
error posture of this case requires, we AFFIRM.
                                     I.
      In the plea agreement, the government promised to “recommend . . . that
the offense level decrease by 2 levels . . . if the defendant clearly demonstrates
acceptance of responsibility.” When the presentence report (PSR) issued, it did
not recommend that reduction. The PSR explained that Huerta’s counsel was
not present for the presentence interview and that Huerta “elected to submit
a written statement of Acceptance of Responsibility, which has yet to be
received.” Accordingly, the PSR did not include in its Guidelines calculation a
two-level reduction for acceptance because “[a]s of completion of the
presentence investigation,” Huerta had “not clearly demonstrated acceptance
of responsibility for the offense.” Huerta did not object to the PSR.
      At sentencing, the court asked the probation officer, “Well, did we ever
get the acceptance?”     The officer answered “no,” apparently referring to
Huerta’s failure to submit an acceptance-of-responsibility statement.        The
district court then announced that it would follow the Guidelines range (188 to
235 months) recommended in the PSR, which did not include acceptance of
responsibility.
      Huerta’s counsel did not object to the Guidelines range. Instead, he
stated that Huerta “understands what he did,” “accepts the responsibility,” and
“is very remorseful for his conduct.” Huerta was then allowed to allocute. He
read the following statement:
             [W]ith all due respect to you and the Court, I’m writing you
      this to admit my faults and actions, that I mean to this situation
      I’m in.



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                                  No. 18-41021
            During the time of my absence, I wasn’t myself. I hit rock-
      bottom in my life. I lost my mother, father, and sister, which
      brought me to a depressed stage in life.
            I turned my life to drugs which caused [m]y addiction and
      altered my train of thought. I take full responsibility for my
      actions. I just want to make clear that I, Enrique Huerta, am not
      a bad person. I just made bad decisions.
            Before the time of my incarceration, I have fallen back on my
      financials and was trying to get back on my feet. My disability
      didn’t help any. I admit and agree with the Court of Law that I
      committed a crime.
      The district court then announced the sentence. It imposed a sentence
slightly lower than the Guidelines range because of Huerta’s medical condition.
The court explained it would not go lower because it was “not inclined to
sentence [him] at a range that would put [him] where [he] would be with the
acceptance because [he] didn’t get that resolved before sentencing here.”
Huerta did not object to the sentence.
                                     II.
      Because Huerta did not contend in the district court that the government
breached the plea agreement, we review this issue for plain error. Huerta thus
must show 1) an error, 2) that is clear or obvious, and 3) that affected his
substantial rights. United States v. Casillas, 853 F.3d 215, 217 (5th Cir. 2017).
If he makes that showing, then we may correct the error only if it “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(quotation omitted).
      Huerta fails to meet the second requirement of plain-error review
because it is not obvious that he satisfied the condition precedent to the
government’s obligation. Huerta had to “clearly demonstrate” acceptance for
the government’s obligation to kick in. Plain-error review of this issue means
Huerta faces a double-“clearly” standard; he must show it is clear that he
clearly accepted responsibility. Both the Probation Office and district court
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                                  No. 18-41021
concluded that Huerta did not qualify for the acceptance-of-responsibility
reduction. The consensus judgment of those two experienced actors is likely
enough to prevent Huerta from showing obvious error. Indeed, their concern
with Huerta’s failure to communicate his acceptance prior to the sentencing
hearing finds support in the Guidelines commentary. See U.S.S.G. § 3E1.1
cmt. n.1(H) (recognizing the timeliness of the defendant’s accepting
responsibility as a factor in deciding if the reduction is warranted). Huerta
nonetheless argues that his allocution merited the reduction.         But, as is
typically the case at sentencing, the allocution came after the district court had
already determined the Guidelines range that would apply.
      Aside from the timeliness problem, it is not clear that Huerta accepted
responsibility when he allocuted. Huerta mostly explained the challenges he
was facing when he committed the offense.            He did say he took “full
responsibility for [his] actions” and admitted that he “committed a crime.” But
those vague and conclusory statements did not “admit[] the conduct comprising
the offense(s) of conviction.” Id. § 3E1.1 cmt. n.1(A) (emphasis added). In other
words, Huerta did not admit that he was part of a meth-trafficking conspiracy.
He did not even mention the name of the crime he had committed. As a result,
it is not obvious that Huerta clearly accepted responsibility.
                                     ***
      Because Huerta has not shown an obvious error, the judgment is
AFFIRMED.




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