     Case: 12-20389      Document: 00512561059         Page: 1    Date Filed: 03/14/2014




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

                                                                                   FILED
                                    No. 12-20389                             March 14, 2014
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JORGE JUAN PEREZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:10-CR-855


Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
       Jorge Juan Perez has appealed his guilty-plea conviction of transferring
obscene material to a minor, coercion and enticement of a minor, and
possession of child pornography. Previously, this court denied counsel’s motion
to withdraw and ordered the filing of a brief on the merits addressing whether
the Government breached its plea agreement with Perez by opposing Perez’s
request for an acceptance-of-responsibility adjustment. United States v. Perez,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-20389    Document: 00512561059     Page: 2   Date Filed: 03/14/2014


                                 No. 12-20389

No. 12-20389 (5th Cir. June 21, 2013) (unpublished; single judge order). In
addition to the non-frivolous issue identified by this court, Perez has briefed
the questions whether the district court erred in imposing the obstruction-of-
justice enhancement and in refusing to reduce his offense level for acceptance
of responsibility.
      After United States v. Booker, 543 U.S. 220 (2005), we review sentences
for procedural error and substantive reasonableness under an abuse of
discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th Cir.
2010). Because Perez did not object that the Government had breached the
plea agreement, we review that question for plain error. See United States v.
Reeves, 255 F.3d 208, 210 (5th Cir. 2001). To show plain error, Perez must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      The Government concedes that it violated the terms of the plea
agreement by opposing Perez’s request for an acceptance-of-responsibility
adjustment. Because of the Government’s concession that the plea agreement
was breached, we have considered the sentencing issues raised by Perez,
notwithstanding the appeal waiver in Perez’s plea agreement. See United
States v. Keresztury, 293 F.3d 750, 756-57 (5th Cir. 2002).
      The obstruction-of-justice enhancement was imposed because Perez
plotted the murder of the case agent. The district court did not clearly err
finding that Perez obstructed justice. See United States v. Juarez-Duarte, 513
F.3d 204, 208 (5th Cir. 2008); see also U.S.S.G. § 3C1.1 & comment (n.4(A)).
      Nor did the district court err in refusing to reduce Perez’s offense level
for acceptance of responsibility. A sentencing court may reduce a defendant’s
offense level “[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a). “If a defendant enters a



                                       2
    Case: 12-20389     Document: 00512561059      Page: 3   Date Filed: 03/14/2014


                                  No. 12-20389

guilty plea prior to trial, truthfully admits the conduct comprising the offense,
and admits, or at least does not falsely deny, any additional relevant conduct
for which he is accountable, the court may find significant evidence of the
defendant’s acceptance of responsibility.” United States v. Medina-Anicacio,
325 F.3d 638, 648 (5th Cir. 2003); see § 3E1.1(a), comment. (n.3). However,
pleading guilty does not entitle the defendant to a reduction as a matter of
right, and evidence of the defendant’s acceptance of responsibility may be
outweighed by conduct inconsistent with such a claim of responsibility. §
3E1.1(a), comment. (n.3). Further, “[c]onduct resulting in an enhancement [for
obstruction of justice] under § 3C1.1 . . . ordinarily indicates that the defendant
has not accepted responsibility for his criminal conduct.” § 3E1.1, comment.
(n.4). The defendant has the burden of proving entitlement to the reduction.
United States v. Thomas, 120 F.3d 564, 574-75 (5th Cir. 1997). We have no
trouble determining that Perez has not met his burden here. Put simply,
attempting to kill one’s case agent is not the act of a defendant who was
accepted responsibility for his criminal acts.
AFFIRMED.




                                        3
