    Case: 13-10364    Document: 00513072336      Page: 1   Date Filed: 06/09/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                 No. 13-10364                     United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                      June 9, 2015
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk
                                            Plaintiff–Appellee,
versus
JUAN MORALES-RODRIGUEZ,
                                            Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before JONES, SMITH, and COSTA, Circuit Judges.
PER CURIAM:

      Juan Morales-Rodriguez pleaded guilty of illegally reentering the United
States after removal. He appeals his sentence, claiming that the government
impermissibly withheld an additional offense-level reduction for acceptance of
responsibility. We affirm.

                                       I.
      Morales-Rodriguez was sentenced under the 2012 guidelines, which pro-
vide for a two-level reduction for acceptance of responsibility and an additional
one-level reduction if, inter alia, the government files a motion “stating that
    Case: 13-10364      Document: 00513072336        Page: 2    Date Filed: 06/09/2015



                                    No. 13-10364
the defendant has assisted authorities in the investigation or prosecution of
his own misconduct by timely notifying authorities of his intention to enter a
plea of guilty, thereby permitting the government to avoid preparing for trial
and permitting the government and the court to allocate their resources effi-
ciently.” U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (2012). The presen-
tence investigation report (“PSR”) stated that although Morales-Rodriguez
qualified for the two-level reduction, the government would not request the
additional one-level reduction. Accordingly, the PSR subtracted two levels for
acceptance of responsibility.

      At the time of sentencing, our caselaw established that the government
could withhold the additional reduction based on a defendant’s decision not to
waive his right to appeal. 1 The plea agreement contained a waiver-of-appeal
provision that was crossed out and initialed by Morales-Rodriguez and his
lawyer. Nothing else in the record indicates whether the government withheld
the additional reduction because Morales-Rodriguez preserved his right to
appeal or for some other reason.

      Morales-Rodriguez did not object to the PSR and filed a statement adopt-
ing it. The guideline range was 51–63 months as calculated in the PSR and
would have been 46–57 months with the additional reduction. The court fol-
lowed the PSR and sentenced Morales-Rodriguez to 63 months.

      While this appeal was pending, the Sentencing Commission amended
the guidelines commentary to explain that “[t]he government should not with-
hold [a motion for the additional reduction] based on interests not identified in
§ 3E1.1, such as whether the defendant agrees to waive his or her right to




      1  United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008), abrogated by United
States v. Villegas Palacios, 756 F.3d 325 (5th Cir. 2014) (en banc) (per curiam).
                                           2
     Case: 13-10364           Document: 00513072336        Page: 3     Date Filed: 06/09/2015



                                          No. 13-10364
appeal.” 2 We held that our previous rule had been abrogated in light of that
amendment and that the new rule applies to cases on appeal at the time of the
amendment. Villegas Palacios, 756 F.3d at 325 & n.1. Morales-Rodriguez asks
us to vacate and remand for resentencing because, in his view, the government
withheld the additional reduction based on his decision not to waive appeal.

                                                II.
         We review for plain error because Morales-Rodriguez did not raise this
issue in the district court. See Puckett v. United States, 556 U.S. 129, 135
(2009). 3 “First, there must be an error or defect—some sort of ‘[d]eviation from
a legal rule’—that has not been intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal error must be clear
or obvious, rather than subject to reasonable dispute.” 4 “[W]here the law at
the time of trial was settled and clearly contrary to the law at the time of
appeal[,] it is enough that an error be ‘plain’ at the time of appellate consider-
ation.” Johnson v. United States, 520 U.S. 461, 468 (1997). “Third, the error
must have affected the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it ‘affected the outcome of the district



         2   Sentencing Guidelines for United States Courts, 78 Fed. Reg. 26,425, 26,431 (May 9,
2013).
         The government urges that Morales-Rodriguez’s sentence resulted from invited error
         3

because he did not object, did not ask the government to put into the record its reason for
withholding the additional reduction, and filed a statement adopting the PSR. But we have
rejected the theory that invited-error review applies merely because a defendant fails to
object and states that his PSR is correct. United States v. Duque-Hernandez, 227 F. App’x
326, 327 n.1 (5th Cir. 2007) (per curiam). Morales-Rodriguez says plain-error review does
not apply, because the Sentencing Commission had not yet amended the guideline commen-
tary at the time of his sentencing, so he lacked the opportunity to raise the issue. That notion
is foreclosed by United States v. Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir.) (per curiam),
cert. denied, 135 S. Ct. 676 (2014).
         Puckett, 556 U.S. at 135 (alteration in original) (citation omitted) (quoting United
         4

States v. Olano, 507 U.S. 725, 732–33 (1993)).
                                                 3
     Case: 13-10364         Document: 00513072336         Page: 4     Date Filed: 06/09/2015



                                         No. 13-10364
court proceedings.’” Puckett, 556 U.S. at 135 (quoting Olano, 507 U.S. at 734).
“Fourth and finally, if the above three prongs are satisfied, the court of appeals
has the discretion to remedy the error—discretion which ought to be exercised
only if the error ‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” 5          “Meeting all four prongs is difficult, ‘as it
should be.’” 6

       Morales-Rodriguez postulates that that the government withheld the
additional reduction because he preserved his right to appeal. He emphasizes
that the waiver provision was crossed out, nothing suggests the government
expended any resources preparing for trial, and it was common practice for the
U.S. Attorney’s Office for the Northern District of Texas to withhold the addi-
tional reduction for that reason. We need not decide that question, because
even if there was an error, it was not clear or obvious. We resolved that in
United States v. Henneberger, 592 F. App’x 233 (5th Cir. 2014) (per curiam).
There the defendant alleged that the government had improperly withheld the
additional reduction for reasons not identified in the guidelines, although he
apparently did not speculate as to what the government’s reasons were; the
record was “silent” on that matter. See id. at 236–37. We held that any error
was not clear or obvious, explaining that, “[b]ecause we have no evidence
concerning the government’s motives for withholding the motion, an erroneous
failure to conclude that the government acted improperly would be anything
but clear and indisputable.” Id.

       The same is true here. Unlike the defendant in Henneberger, Morales-
Rodriguez had a written plea agreement with the waiver provision crossed out,


       5Id. (alteration in original) (quoting Olano, 507 U.S. at 736) (internal quotation marks
omitted).
       6   Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)).
                                                4
     Case: 13-10364       Document: 00513072336          Page: 5     Date Filed: 06/09/2015



                                       No. 13-10364
but that it is a distinction without a difference. The Henneberger defendant
also preserved his right to appeal, and the fact that Morales-Rodriguez did so
in writing has little bearing on whether the government withheld the addi-
tional reduction in response. It certainly does not make any error clear or
obvious, 7 so Morales-Rodriguez has not shown plain error.

       AFFIRMED.




       7 Cf. United States v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012) (per curiam) (“Ques-
tions of fact capable of resolution by the district court upon proper objection at sentencing
can never constitute plain error.” (alteration omitted) (quoting United States v. Lopez, 923
F.2d 47, 50 (5th Cir. 1991) (per curiam)) (internal quotation marks omitted)).
                                              5
