     Case: 12-11251       Document: 00512349545         Page: 1     Date Filed: 08/21/2013




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

                                                                            FILED
                                                                          August 21, 2013
                                     No. 12-11251
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MANUEL ALEJANDRO DURAN-MUNEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-88-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Manuel Alejandro Duran-Munez (Duran) appeals the above-guidelines
sentence imposed on remand following his illegal reentry conviction. He argues
for the first time on appeal that his sentence was procedurally unreasonable and
that the district court violated his Fifth Amendment right against self-
incrimination by allegedly equating his silence at sentencing with a lack of
remorse for his extensive criminal history. Our review is for plain error only.
Puckett v. United States, 556 U.S. 129, 135 (2009). To establish plain error,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-11251

Duran must show a forfeited error that is clear or obvious and that affects his
substantial rights. Id. at 135.
      Duran contends that because he previously apologized to the court during
his original sentencing, the district court’s finding on remand that his silence
evinced an absence of remorse for his extensive criminal history was clear error,
which resulted in a procedurally unreasonable sentence. A sentencing court
commits procedural error if it determines a sentence based on erroneous facts.
United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009).
A defendant’s lack of remorse at sentencing can be considered by the sentencing
court in fashioning the appropriate sentence. See United States v. Kippers,
685 F.3d 491, 499 (5th Cir. 2012).
      The district court commented on Duran’s lack of remorse during
resentencing on more than one occasion, and Duran neither spoke nor objected
to the district court’s finding that he was not contrite. Duran’s lack of remorse
could have also been reasonably inferred not only from his silence but from his
extensive criminal history and disregard for authority, which the district court
expressly stated factored into its sentencing decision. On plain error review, the
district court’s finding of no remorse was not a plain or obvious error and,
moreover, given that the perceived lack of remorse was but one factor
contributing to the sentence imposed, along with Duran’s lack of respect for
authority, the serious nature of his crimes, and an extensive criminal history in
a short timespan, Duran has not shown that his substantial rights were affected
by this finding. See Puckett, 556 U.S. at 135. Finally, we will not substitute our
judgment based on a cold record for that of the district court, which had an
opportunity to observe the defendant’s demeanor and judge his sincerity.
Cf. United States v. Salinas, 122 F.3d 5, 7-8 (5th Cir. 1997).
      Citing Mitchell v. United States, 526 U.S. 314 (1999), Duran argues that
the district court violated his Fifth Amendment right against self-incrimination
by equating his silence at sentencing with a lack of remorse when reference was

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                                 No. 12-11251

made by the prosecution to his kidnapping his ex-wife, a crime for which he had
been convicted and sentenced.     Duran’s reliance on Mitchell is misplaced;
Mitchell’s holding was limited to the drawing of adverse inferences from a
defendant’s silence with regard to details of the offense of conviction for which
the defendant was being sentenced--in this case, Duran’s illegal reentry into the
United States. See 526 U.S. at 330. Moreover, Duran’s Fifth Amendment
privilege was not at issue; he had pleaded guilty to and had been sentenced for
the aggravated kidnapping offense.      Under Mitchell, there is no basis for
asserting the Fifth Amendment privilege where there can be no further
incrimination. Id. at 326. Duran has not shown, on plain error review, that he
had a basis to assert his Fifth Amendment privilege concerning his aggravated
kidnapping conviction.
      AFFIRMED.




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