     Case: 14-40009       Document: 00512809807        Page: 1    Date Filed: 10/21/2014




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

                                    No. 14-40009                              FILED
                                  Summary Calendar                     October 21, 2014
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ELIZA LOZANO LUMBRERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:10-CR-335-3


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Eliza Lozano Lumbreras appeals following her conviction and sentence
on one count of conspiring to commit health care fraud. She argues that her
midtrial guilty plea was involuntary because it was impelled by her counsel’s
ineffective assistance.
       Because Lozano Lumbreras made no objections in the district court
concerning her plea, our review is for plain error. See United States v. Brown,
328 F.3d 787, 789 (5th Cir. 2003). To show plain error, she must show a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40009

forfeited error that is clear or obvious and that affects her substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If she makes such a
showing, we have the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      “The longstanding test for determining the validity of a guilty plea is
whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” Brown, 328 F.3d at 789
(internal quotation and citation omitted). The procedure embodied in Federal
Rule of Criminal Procedure 11 “assist[s] the district judge in making the
constitutionally required determination that a defendant’s guilty plea is truly
voluntary. Second, the Rule is intended to produce a complete record at the
time the plea is entered of the factors relevant to this voluntariness
determination.” McCarthy v. United States, 394 U.S. 459, 465 (1969) (internal
footnote omitted).
      The rearraignment transcript provides no support for Lozano
Lumbreras’s assertion that her guilty plea was involuntary. See Brown, 328
F.3d at 789. She has not made the requisite showing of plain error. See
Puckett, 556 U.S. at 135. To the extent that Lozano Lumbreras is asserting a
claim of ineffective assistance of counsel, because the record has not been
sufficiently developed to permit a fair evaluation of the claim we adhere to our
general rule that ineffective assistance claims will not be considered on direct
appeal. See United States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001).
      Lozano Lumbreras asserts that her sentence was unreasonable. She
contends that the district court erred in imposing an enhancement for her role
in the offense under United States Sentencing Guidelines § 3B1.1(c). She also
argues that her sentence was substantively unreasonable.
      Pursuant to Gall v. United States, 552 U.S. 38, 49-51 (2007), we engage
in a bifurcated review process of the sentence imposed by the district court.

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                                 No. 14-40009

United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First,
we consider whether the district court committed a significant procedural
error, such as failing to calculate or incorrectly calculating the guidelines
range. Gall, 552 U.S. at 51. If there is no error or the error is harmless, we
may proceed to the second step and review the substantive reasonableness of
the sentence imposed under a deferential abuse of discretion standard, taking
into account the totality of the circumstances. Gall, 552 U.S. at 51.
      The presentence report, which the district court adopted in relevant part,
shows that Lozano Lumbreras, along with a co-defendant, devised an
especially complex or intricate scheme to execute and conceal the offense and
that she devised a scheme in which she, with the assistance of others,
fraudulently billed Medicare and Medicaid programs. The facts discussed
above are sufficient to support a two-level role enhancement. See United States
v. Paden, 908 F.2d 1229, 1236 (5th Cir. 1990). The district court’s decision on
the role enhancement is not clearly erroneous. United States v. Zuniga, 720
F.3d 587, 590 (5th Cir. 2013).
      Because Lozano Lumbreras did not object, we review for plain error her
claim that her sentence was substantively unreasonable. See United States v.
Peltier, 505 F.3d 389, 392 (5th Cir. 2007). Her argument, which is based on
her age and risk of recidivism, fails to show that her sentence was
substantively unreasonable, and likewise fails to rebut the presumption of
reasonableness applicable to her within-guidelines sentence.        See United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      In view of the foregoing, the judgment of the district court is affirmed.
Lozano Lumbreras’s motion for bail pending appeal is denied.
AFFIRMED; MOTION DENIED.




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