     Case: 09-11153 Document: 00511299931 Page: 1 Date Filed: 11/19/2010




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

                                                 FILED
                                                                         November 19, 2010
                                     No. 09-11153
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

URIEL PALACIOS, also known as Youngster,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:08-CR-267-4


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Uriel Palacios appeals the sentence imposed for his guilty plea convictions
for money laundering and conspiring to possess with intent to distribute and to
distribute more than five kilograms of cocaine. 18 U.S.C. § 1956(a)(1)(A)(i), (h);
21 U.S.C. §§ 841(a)(1), 846. Palacios was sentenced to concurrent terms of
240 months of imprisonment and three years of supervised release for the
money laundering conviction and 360 months of imprisonment and five years of



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11153 Document: 00511299931 Page: 2 Date Filed: 11/19/2010

                                    No. 09-11153

supervised release for the conspiracy conviction. The district court ordered that
the federal sentence run consecutively to yet-to-be imposed state sentences.
         Palacios contends that the district court erred in applying U.S.S.G.
§ 2S1.1(a)(1) to calculate his offense level because conspiratorial liability cannot
form the basis of the cross-reference. In addition, Palacios argues that the cross-
reference did not apply because there was no evidence that he laundered the
proceeds of drug transactions in which he personally participated.               The
objections Palacios raised in the district court would not have alerted the court
to this claim of error. Cf. United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009)
(“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.”). Therefore, review is for plain error.
         To show plain error, Palacios must show that the forfeited error is clear or
obvious and affects his substantial rights. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009).       If Palacios makes such a showing, we have the
discretion to correct the error but only if it “‘seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’”        Id. (alteration in
original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). We need not
decide whether the district court erred in applying the cross-reference in
§ 2S1.1(a)(1) because any such error would not have been clear or obvious. See
United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009), cert. denied, 2010 WL
390721 (June 21, 2010) (No. 09-8939); see also United States v. Jackson, 549 F.3d
963, 977 (5th Cir. 2008), cert. denied, 130 S. Ct. 51 (2009).
         Palacios also contends that the district court erred in attributing the full
amount of the currency seized to him for purposes of calculating his offense level.
The objections on which Palacios relies would not have alerted the district court
to his argument that there was insufficient evidence he provided all of the
currency seized. Cf. Neal, 578 F.3d at 272-73. Therefore, review is for plain
error.

                                           2
    Case: 09-11153 Document: 00511299931 Page: 3 Date Filed: 11/19/2010

                                  No. 09-11153

      As a question of fact that was capable of resolution by the district court
upon proper objection, the district court’s finding that Palacios was accountable
for all the currency seized cannot constitute plain error. See United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Even if this issue was susceptible to plain
error, the district court was entitled to rely on the findings of the PSR, and
Palacios has failed to show error, plain or otherwise, in this regard. See United
States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009).
      Palacios raises three additional arguments, which he acknowledges are
foreclosed by our precedent, to preserve for further review. Palacios contends
that the Government was not authorized under § 3E1.1(b) to decline to move for
an additional one-level reduction for acceptance of responsibility because he
refused to waive his appellate rights. Therefore, Palacios argues that the district
court erred by failing to grant him the additional one-level reduction. In United
States v. Newson, we held that a district court may not award a reduction
pursuant to § 3E1.1(b) absent a motion from the Government and that the
Government may decline to make such a motion if the defendant refuses to
waive his right to appeal. 515 F.3d 374, 377-79 (5th Cir. 2008). Palacios also
contends that the district court violated his Sixth Amendment rights because
facts essential to determining the sentence were not alleged in the indictment,
proved to a jury beyond a reasonable doubt, or admitted by him. We have
consistently rejected this claim. See United States v. Rhine, 583 F.3d 878, 891
n.50 (5th Cir. 2009)(listing cases). Finally, Palacios contends that the district
court erred in ordering his sentence to run consecutively to yet-to-be imposed
state sentences. We rejected this claim in United States v. Brown, 920 F.2d
1212, 1217 (5th Cir. 1991), overruled on other grounds by United States v.
Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which remains binding precedent
in this circuit. See United States v. Setser, 607 F.3d 128, 131-32 (5th Cir. 2010).
      The judgment of the district court is AFFIRMED.



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