     Case: 16-51153      Document: 00514140233         Page: 1    Date Filed: 09/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fif h Circuit
                                    No. 16-51153                                    FILED
                                  Summary Calendar                          September 1, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                    Clerk


                                                 Plaintiff-Appellee

v.

HUGO CESAR ESPINOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:16-CR-253-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Pursuant to a written plea agreement, Defendant-Appellant Hugo Cesar
Espinoza pleaded guilty to Count One of a three-count indictment charging
him with conspiracy to possess with the intent to distribute 50 grams or more
of methamphetamine. On the government’s motion, Counts Two and Three of
the indictment were dismissed. The district court sentenced Espinoza to a
within-guidelines sentence of 168 months of imprisonment and four 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-51153

supervised release. On appeal, Espinoza argues that the district court erred
in calculating his base offense level by including the quantity of drugs subject
to the two dismissed counts to determine the total amount of drugs for which
he was held accountable. He also argues that he received ineffective assistance
of counsel when his counsel failed to object to the district court’s calculation in
this regard.
      As a preliminary matter, the appeal waiver in Espinoza’s plea agreement
would appear to bar this appeal in its entirety, including Espinoza’s ineffective
assistance of counsel claims. However, it does not appear that the government
seeks to enforce it. Importantly, while the government notes the existence of
the waiver, it does not object to the appeal on the grounds of waiver, nor does
it seek dismissal of the appeal on those grounds. See United States v. Story,
439 F.3d 226, 231 (5th Cir. 2006) (“In the absence of the [G]overnment’s
objection to Story’s appeal based on his appeal waiver, the waiver is not
binding because the [G]overnment has waived the issue”). Accordingly, we
review the merits of Espinoza’s claims.
      Espinoza failed to preserve his argument that the district court erred in
determining his base offense level based on its drug-quantity findings.
Accordingly, our review is for plain error. See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain error, Espinoza
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
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.
      A defendant’s base offense level for a drug offense is determined by the
quantity of drugs involved in the offense and other drugs not specified in the



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                                 No. 16-51153

count of conviction attributable as relevant conduct. See U.S.S.G. § 2D1.1
comment. (n.5); § 1B1.3(a)(1); see United States v. Wall, 180 F.3d 641, 644-45
(5th Cir. 1999). Relevant conduct includes quantities of drugs not specified in
the count of conviction. See United States v. Byrd, 898 F.2d 450, 452 (5th Cir.
1990). It also includes conduct underlying “offenses for which a defendant has
been indicted but not convicted, as well as the factual basis of dismissed
counts.” United States v. Ponce, 917 F.2d 846, 848 (5th Cir. 1990) (internal
quotation marks and citation omitted).
      Espinoza recognizes our precedents holding that drugs included in the
dismissed counts of an indictment can be used as relevant conduct to determine
a defendant’s base offense level, but argues that we should “reexamine” those
precedents in light of our holdings in United States v. Cockerham, 919 F.2d
286, 288 (5th Cir. 1990) and United States v. Alarcon, 261 F.3d 416 (5th Cir.
2001).
      In Cockerham, we held that the Victim and Witness Protection Act of
1982, 18 U.S.C. § 3556, “authorizes restitution only for loss caused by the
specific conduct that is the basis of the offense of conviction.” Cockerham, 919
F.2d at 288 (citing Hughey v. United States, 495 U.S. 411 (1990)). Cockerham
is inapposite here. As opposed to the issue we addressed in Cockerham, there
is no statutory limitation that would have precluded the district court from
considering drug quantities subject to dismissed counts of an indictment as
relevant conduct in calculating a defendant’s base offense level.
      In Alarcon, we held that, where we overturned a conviction on appeal,
and that conviction was the sole basis for a sentencing enhancement, the
district court had committed plain error in assessing the enhancement. 261
F.3d at 423-24. The district court’s drug quantity finding in this case was not
based solely on an overturned conviction but rather the admissions made by



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Espinoza in the factual basis for his plea that he had engaged in the conduct
alleged in the dismissed counts of the indictment. Those admissions formed
the basis for the findings of the presentence report (PSR) and the district court.
In light of the fact that Espinoza did not object to the PSR or submit any
competent evidence to rebut the PSR’s findings, the district court was “free to
adopt [the PSR’s] findings without further inquiry or explanation.” United
States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
      Based on the foregoing, Espinoza has failed to demonstrate any clear or
obvious error in the district court’s adoption of the PSR’s findings regarding
the quantity of drugs for which he was ultimately held responsible.           See
Puckett, 556 U.S. at 135.
      Because Espinoza has failed to establish any legally cognizable basis for
his counsel to have objected to the district court’s drug-quantity findings, we
conclude that it would have been futile for his counsel to do so. Thus, counsel
did not perform deficiently by not raising such an argument. See Roberts v.
Thaler, 681 F.3d 597, 611 (5th Cir. 2012) (recognizing that counsel is not
required to make futile motions or objections). Thus, we reject Espinoza’s
asserted ineffective assistance of counsel claims.
      AFFIRMED.




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