     Case: 15-40810      Document: 00513519969         Page: 1    Date Filed: 05/24/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40810
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 24, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ARTEMIO PESINA-ARANO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1168-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Artemio Pesina-Arano challenges his 77-month sentence for illegal
reentry following deportation.         Pesina asserts that the district court: (1)
impermissibly participated in plea discussions in violation of Federal Rule of
Criminal Procedure 11(c)(1); (2) improperly assessed criminal history points on
the basis of his 2002 Kansas state sentence for attempted aggravated burglary;
and (3) improperly applied the 16-level drug trafficking offense enhancement


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40810

under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 2008 Kansas convictions for
selling cocaine.
      As Pesina concedes, he is asserting for the first time on appeal that that
the district court violated Rule 11(c)(1) by participating in plea discussions.
Plain error review thus applies. See United States v. Davila, 133 S. Ct. 2139
(2013) (rejecting argument that improper court participation in plea
discussions requires automatic vacatur of plea rather than applying harmless
or plain error review).
      At the docket call, the district court repeatedly emphasized his belief
that Pesina would face a harsher sentence if he went to trial instead of entering
a guilty plea. The following exchange is representative of the district court’s
comments:
      THE COURT: . . . I hope Mr. Pesina understands that by going to trial
      he is likely—well, not likely—he’s certain to face a larger sentence than
      if he did not go to trial.
      MR. GOULD: I’ve tried to make that clear.
      THE COURT: I mean, it is a certainty.

Although they were likely well-intentioned, we are concerned that these
statements reflect certainty about the outcome of the trial that could have
pressured Pesina to plead guilty. See United States v. Pena, 720 F.3d 561, 573
(5th Cir. 2013) (explaining that regardless of the district court’s objectivity, it
is the defendant’s perception that determines whether he felt coerced to enter
a plea).   But Pesina did not plead guilty.      In spite of the district court’s
comments he still went to trial. And he raises no argument that the district
court’s pretrial comments led to an unfair trial. That requires him to show
that the pretrial comments amounted to a predetermination of his sentence
that prejudiced him. See United States v. Crowell, 60 F.3d 199, 205 (5th Cir.
1995) (holding that when a defendant who went to trial challenges court


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                                  No. 15-40810

participation in plea negotiations, he must establish that the participation
“affected the court’s impartiality in the conduct of the trial or sentencing”).
      Pesina cannot make that showing of an effect on his substantial rights.
The district court sentenced Pesina to the low end of the Guideline range,
which does not indicate impartiality or hostility. And unlike in Crowell, in
which the district court rejected plea agreements because the statutory
maximum sentences they allowed were too lenient, id., the pretrial comments
in this case indicate no specific consideration of Pesina’s conduct or sentence
prior to the sentencing hearing.      The district court made only a general
observation about the relative sentences of those who plead guilty versus those
who are convicted at trial. Of course, the observation is also a true one as the
Guidelines provide for lower sentences when a defendant has accepted
responsibility. See U.S.S.G. § 3E1.1. Pesina thus has not shown that any
district court error affected his substantial rights.
      The comparison with Crowell reveals another reason why Pesina cannot
overcome plain error review. The court participation in Crowell and other Rule
11(c)(1) cases came in the context of a plea negotiation. FED. R. CRIM. P.
11(c)(1) (“An attorney for the government and the defendant’s attorney . . . may
discuss and reach a plea agreement. The court must not participate in these
discussions.”). In contrast, there is no indication here that any plea agreement
was being negotiated. Pesina thus cannot establish any obvious error arising
from court involvement in a defendant’s decision to plead guilty that is
unconnected to any potential plea agreement. See United States v. Reasor, 418
F.3d 466, 478-79 (5th Cir. 2005) (“As there was no ongoing plea negotiation,
Rule 11’s prohibition does not apply.”).
      That leaves the two sentencing issues Pesina raises. This court reviews
for clear error Pesina’s challenge to the district court’s determination that his



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                                 No. 15-40810

2002 Kansas state sentence for attempted aggravated burglary, when
aggregated with his 2007 Kansas state probation revocation sentence,
qualified for three criminal history points. See U.S.S.G. §§ 4A1.1(a), 4A1.2(k);
United States v. Nava, 624 F.3d 226, 229 (5th Cir. 2010); United States v.
Martinez-Moncivais, 14 F.3d 1030, 1038 (5th Cir. 1994). The Kansas state
sentencing documents appended to the Presentence Report (PSR) identified
the imprisonment terms for each of Pesina’s 2002 and 2007 sentences as 12
months. Because Pesina failed to offer any sworn testimony or other rebuttal
evidence to counter the PSR’s determination that his aggregated sentences
exceeded 13 months, the district court was free to adopt the PSR’s finding
without further inquiry. See United States v. Mir, 919 F.2d 940, 943 (5th Cir.
1990). Pesina’s appellate challenge to this factual finding as clear error cannot
rely on previously available information regarding Kansas’ state sentencing
processes that is presented for the first time in this appeal. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). The district court
thus did not clearly err in determining Pesina’s criminal history score. See
United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
      Pesina concedes that his final argument—that the district court erred in
applying the § 2L1.2(b)(1)(A)(i) drug trafficking enhancement because the
Kansas drug offense includes not just selling drugs but giving drugs as a gift
—is being raised for the first time on appeal. But the standard of review does
not matter as this challenge is foreclosed by United States v. Martinez-Lugo,
782 F.3d 198, 204–05 (5th Cir.), cert. denied, 136 S. Ct. 533 (2015).
      The judgment is AFFIRMED.




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