     Case: 16-31053      Document: 00514129219         Page: 1    Date Filed: 08/23/2017




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

                                    No. 16-31053                                FILED
                                  Summary Calendar                        August 23, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAY SANDIFER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:10-CR-298-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jay Sandifer appeals his sentence for receiving child pornography in
violation of 18 U.S.C. § 2252A(a)(2). The district court’s guideline calculation
reflected a two-level reduction for acceptance of responsibility under U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1(a), but the Government did
not move for an additional one-level reduction under § 3E1.1(b). The court
sentenced Sandifer within the advisory guideline range to 108 months 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-31053     Document: 00514129219     Page: 2   Date Filed: 08/23/2017


                                  No. 16-31053

imprisonment, a $15,000 fine, and five years of supervised release. Sandifer
argues that we should remand the case to the district court to rule out the
possibility that the Government had improper motives in refusing to move for
the additional one-level reduction.
      We review the issue for plain error. United States v. Garcia-Carrillo, 749
F.3d 376, 378 (5th Cir. 2014) (per curiam). After Sandifer was sentenced, the
Sentencing Commission amended § 3E1.1’s commentary to clarify that the
Government should not withhold a motion for the third-level reduction “based
on interests not identified in § 3E1.1, such as whether the defendant agrees to
waive his or her right to appeal.” U.S.S.G. app. C amend. 775 at 43 (2013)
(codified at U.S.S.G. § 3E1.1 cmt. n.6).     The amendment applies to cases
pending on direct appeal. United States v. Villegas Palacios, 756 F.3d 325, 326
& n.1 (5th Cir. 2014) (per curiam).
      Sandifer’s speculation that the Government may have had improper
motives in withholding the motion falls short of a showing of clear or obvious
error. See Puckett v. United States, 556 U.S. 129, 135 (2009). Moreover, the
record indicates that Sandifer did not plead guilty until three days before trial,
after the Government had engaged in significant trial preparation and after
the trial date had been continued at his request.
      AFFIRMED.




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