      Case: 15-41642          Document: 00513845500              Page: 1      Date Filed: 01/23/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                            No. 15-41642                              United States Court of Appeals
                                                                                               Fifth Circuit

                                                                                             FILED
UNITED STATES OF AMERICA,                                                             January 23, 2017
                                                                                           Lyle W. Cayce
                 Plaintiff - Appellee                                                           Clerk

v.

JUAN DUQUE-TINOCO, also known as Rogelio Lopez-Ruiz,

                  Defendant - Appellant
----------------------------------------------------------------------------------------
                                     consolidated with No. 15-41638

UNITED STATES OF AMERICA,

                   Plaintiff – Appellee

v.

JUAN DUQUE-TINOCO

                    Defendant - Appellant


                     Appeals from the United States District Court
                          for the Southern District of Texas
                                USDC No. 3:15-CR-17-1


Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges.
     Case: 15-41642      Document: 00513845500         Page: 2    Date Filed: 01/23/2017



                                     No. 15-41642
                                   c/w No. 15-41638
PER CURIAM:*
       Juan Duque-Tinoco pleaded guilty to illegal reentry and was sentenced
to 37 months of imprisonment and three years of supervised release. His
supervised release imposed for a prior conviction was revoked, and he was
sentenced to 24 months of imprisonment. The sentences were ordered to run
consecutively. He challenges both sentences in these consolidated appeals.
       As to the sentence for the new offense, Duque-Tinoco argues that the
district court abused its discretion in departing upward pursuant to U.S.S.G.
§ 5K2.21 for uncharged conduct. The uncharged conduct the district court
relied on was the fact recounted in the Presentence Report that Duque-Tinoco
was found in the United States during a traffic stop of a vehicle in which
officers discovered 2.2 kilograms of methamphetamine. Duque-Tinoco argues
that the mere presence of the drugs in containers in a vehicle he was driving
does not establish he possessed the methamphetamine. He argues that the
Presentence Report does not provide much detail about the drugs including
their exact location in the vehicle or visibility.
       The parties disagree about whether plain error applies to this argument,
but we need not resolve that dispute because the claim of error fails even under
the standard of review that applies when we review preserved challenges to
factual determinations. We conclude that the district court did not clearly err
in finding, by a preponderance of the evidence, that Duque-Tinoco committed
the uncharged conduct. See United States v. Koss, 812 F.3d 460, 466 (5th Cir.
2016).




       * 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. 15-41642
                                c/w No. 15-41638
      Rejection of this argument in the context of the new illegal reentry case
also warrants rejecting Duque-Tinoco’s argument that any error in the district
court’s assessment of the uncharged conduct at that sentencing improperly
influenced the sentence in the revocation case.
      Duque-Tinoco raises an additional argument challenging the revocation
sentence: that he was denied the opportunity to allocute. He concedes that he
did not raise this objection in the district court. We have discretion to correct
a forfeited error only if the error is obvious, affects the defendant’s substantial
rights, and undermines the fairness, integrity, or public reputation of judicial
proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009).
      The district court held the hearings in both of Duque-Tinoco’s cases back-
to-back and only afforded a chance to allocute in the first hearing that dealt
with the new case. Not allowing allocution at the revocation hearing was a
clear error. See FED. R. CRIM. P. 32.1(b)(2)(E); United States v. Avila-Cortez,
582 F.3d 602, 604-05 (5th Cir. 2009). Duque-Tinoco’s substantial rights were
arguably affected because he was sentenced above the Guidelines range.
Avila-Cortez, 582 F.3d at 605. But given that the district court had just heard
Duque-Tinoco allocute a few minutes earlier in connection with his sentence
for the new reentry offense that raised similar issues to the revocation
sentence, we decline to exercise our discretion to correct this error. See id. at
606 (explaining that “if the defendant had a prior opportunity to allocute . . .
then the case is one of those ‘limited class of cases’ in which we will decline to
exercise our discretion to correct the error” (quoting United States v. Reyna,
358 F.3d 344, 352 (5th Cir. 2004) (en banc))); see also United States v. Legg,
439 F. App’x 312, 313 (5th Cir. 2011) (declining to correct the error because the
defendant’s proposed allocution had already been considered and deemed
unpersuasive and did not undermine the district court’s reasons for imposing

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                                  No. 15-41642
                                c/w No. 15-41638
sentence); United States v. Coleman, 280 F. App’x 388, 392 (5th Cir. 2008)
(similar); United States v. Neal, 212 F. App’x 328, 332 (5th Cir. 2007) (similar).
      The judgments of the district court are AFFIRMED.




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