     Case: 16-40043       Document: 00513770897          Page: 1     Date Filed: 11/22/2016




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

                                       No. 16-40043
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         November 22, 2016

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
                                                   Plaintiff-Appellee

v.

JESUS RODRIGUEZ-DE LA FUENTE,

                                                   Defendant-Appellant


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


Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
       Without a written agreement, Jesus Rodriguez-De la Fuente (Rodriguez)
pleaded guilty to conspiring to possess with intent to distribute 100 kilograms
or more of marijuana. His presentence report (PSR) recommended an advisory
guidelines range of 87 to 108 months’ imprisonment. At the initial sentencing
hearing, the parties requested a continuance to allow Rodriguez another
opportunity to debrief with the Government for the purpose of qualifying for
the U.S.S.G. § 2D1.1(b)(17) “safety-valve” reduction. 1 The district court
granted the continuance.



       1“If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a)
of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases),
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                                         No. 16-40043

       At the reconvened sentencing hearing, the district court heard testimony
from the case agent, and sustained Rodriguez’s objection to the PSR’s
recommended two-level increase for his role in the offense. The district court
also sustained in part Rodriguez’s objection to the use of his proffered
statements for sentencing purposes, but denied the objection to the extent the
objected-to PSR paragraphs contained information that had been obtained
beforehand from other individuals. These rulings resulted in a new advisory
guidelines range of 70 to 87 months imprisonment.
       After addressing the objections, the district court noted that without the
role enhancement, Rodriguez might be eligible for the two-level “safety-valve”
reduction pursuant to § 2D1.1(b)(17) and § 5C1.2(a). 2 The Government,
however, stated that it was “not in a position to do a safety valve request to the
Court right now,” explaining that Rodriguez’s debrief had been cut short
because the case agent felt the defendant was not being forthcoming with
regard to the involvement of family members. The district court asked
Rodriguez if he would like more time to possibly qualify for the reduction.
       After conferring with his attorney, Rodriguez informed the district court
that he did not want another chance to debrief with the Government and


decrease by 2 levels.” U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(17) (U.S.
SENTENCING COMM’N 2015).

       2U.S.S.G. § 5C1.2(a) sets forth five criteria. At issue in this case is the fifth criterion,
§ 5C1.2(a)(5), which provides:

       (5) not later than the time of the sentencing hearing, the defendant has
       truthfully provided to the Government all information and evidence the
       defendant has concerning the offense or offenses that were part of the same
       course of conduct or of a common scheme or plan, but the fact that the
       defendant has no relevant or useful other information to provide or that the
       Government is already aware of the information shall not preclude a
       determination by the court that the defendant has complied with this
       requirement.



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sought, instead, to proceed with sentencing at that time. Rodriguez
acknowledged that he understood that this meant that he would not qualify for
either a safety-valve reduction or a § 5K downward departure based on his
interviews. Further, the district court directly asked Rodriguez to confirm he
was “willing to forego any opportunity to debrief with the Government for any
kind of further sentence reduction,” to which Rodriguez responded, “Yes.”
      Rodriguez then moved “for a downward departure and a variance
pursuant to [18 U.S.C. §] 3553” based on his substantial assistance to the
Government with regard to the criminal activities of persons other than his
family members, his corroboration of information given by his codefendants,
and his decision to plead guilty. The district court overruled that request,
noting that Rodriguez played an “important role” in the conspiracy. Rodriguez
then asked the district court to consider imposing a sentence at the five-year
statutory minimum.
      The district court imposed a within-guidelines sentence of 78 months
imprisonment and four years of supervised release. Rodriguez filed a timely
notice of appeal. He contends that his 78-month within-guidelines sentence is
both procedurally and substantively unreasonable.
                           *            *            *
      Rodriguez first argues that the district court procedurally erred by not
applying the two-level safety-valve reduction under § 2D1.1(b)(17). He asserts
that he satisfied all of the requirements of § 5C1.2(a) to qualify for such a
reduction, including debriefing with the Government.
      Rodriguez did not object to the PSR’s failure to include a safety-valve
reduction, he did not object to the Government’s statement that he was not
complete in his debriefing, and he did not argue at sentencing that his
debriefing was sufficient to meet the criterion of § 5C1.2(a)(5). To the contrary,



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                                  No. 16-40043

he acknowledged that his debriefing did not qualify him for the safety-valve
reduction. Thus this court’s review is for plain error. See United States v.
Gomez-Valle, 828 F.3d 324, 328 (5th Cir. 2016). To establish plain error, a
defendant must show (1) “an error or defect . . . that has not been intentionally
relinquished or abandoned”; (2) that is “clear or obvious” and not “subject to
reasonable dispute”; and (3) that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009) (internal quotation marks,
modification, and citation omitted). If he makes such a showing, this court has
the discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Rodriguez fails at the first step of the plain-error analysis: he waived any
argument that the district court erred by not granting a safety-valve reduction.
“Waiver is different from forfeiture. Whereas forfeiture is the failure to make
the timely assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733
(1993) (internal quotation marks omitted). “Waiver extinguishes an error,
taking it out of Federal Rule of Criminal Procedure 52(b),” United States v.
Dodson, 288 F.3d 153, 160–61 (5th Cir. 2002), and thus “[w]aived errors are
entirely unreviewable,” United States v. Musquiz, 45 F.3d 927, 931–32 (5th Cir.
1995). Under questioning from both his own counsel and the district court,
Rodriguez confirmed that he wished to forgo the opportunity for an additional
debriefing session with the Government and continue with the sentencing
hearing. He acknowledged that he understood that this decision meant that he
would not qualify for either a safety-valve reduction or a § 5K downward
departure. Accordingly, Rodriguez abandoned any right to a safety-valve
reduction, and he cannot now argue that the district court erred in failing to
apply it. See id.



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      Rodriguez also contends that his sentence is substantively unreasonable.
Rodriguez did not object at sentencing to his 78-month within-guidelines
sentence as unreasonable. Thus, our review is for plain error. See United States
v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). This court presumes that a within-
guidelines sentence is reasonable. United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). Rodriguez has failed to demonstrate that the district court did
not consider a sentencing factor that should have received significant weight,
gave significant weight to a factor it should have discounted, or made a clear
error of judgment when it balanced the relevant factors. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Thus, he has not rebutted the
presumption that his sentence is substantively reasonable. See id.; Alonzo, 435
F.3d at 554–55. “Under the plain error standard, we will not disturb the
sentence imposed merely because an appellant disagrees with the sentence and
the balancing of factors conducted by the district court.” United States v.
Powell, 732 F.3d 361, 382 (5th Cir. 2013).
      AFFIRMED.




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