     Case: 11-50493       Document: 00512170513         Page: 1     Date Filed: 03/11/2013




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

                                                                            FILED
                                                                          March 11, 2013
                                       No. 11-50493
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

versus

PIERE LADAY JONES,

                                                  Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                 No. 1:10-CR-758




Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Piere Jones challenges the procedural correctness and substantive reason-
ableness of his sentence. We affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                        I.
      In January 2010, Jones was caught in a police “buy-bust” operation. After
selling an undercover officer 0.67 grams of crack cocaine, Jones was arrested,
booked into jail, and four days later released on bond. About April, he was
arrested for driving while intoxicated and possession of marihuana; he pleaded
nolo contendere and was sentenced to forty-five days in jail. Not long after his
release, he was arrested, in June, for possession of cocaine base and held in jail.
      In December, Jones appeared before a federal grand jury regarding the
January and June arrests. The grand jury returned an indictment charging him
with one count of distribution of cocaine base and one count of possession of
cocaine base with intent to distribute. The state dismissed the pending state
charges; Jones was transferred to federal custody and released on bond.
      Four days after his release, Jones tested positive for marijuana. After first
lying to his pretrial officer, he admitted to using drugs but rejected an offer for
drug rehabilitation treatment. About ten days later, he submitted a diluted
urine sample, preventing an accurate drug test. After a subsequent drug test
indicated use of cannabinoids and opiates, he was returned to federal custody.
      In February, Jones pleaded guilty to Count One, and the government
agreed to dismiss Count Two after sentencing. In advance of the preparation of
the presentence report (“PSR”), Jones submitted a statement admitting to and
apologizing for his offense.
      The PSR calculated Jones’s base offense level as 20 and his criminal his-
tory as category V, producing a guideline range of 63–78 months. The PSR rec-
ommended against a sentence reduction for acceptance of responsibility under
U.S. Sentencing Guidelines § 3E1.1(a), describing the underlying offenses
(including a mention of the April conviction that occurred between the two
arrests) and the drug tests following Jones’s pre-trial release. Before sentencing,
Jones filed a written objection to the PSR, asserting that it erred in “den[ying]

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                                   No. 11-50493

[the] acceptance [reduction] solely because [he] tested positive for marijuana use
shortly after his release but prior to his entry of his plea of guilty.” Jones argued
that his concession of criminal conduct and cooperation while on pre-trial release
demonstrated acceptance of responsibility. The addendum to the PSR responded
by acknowledging Jones’s expressions of remorse and guilty plea but emphasiz-
ing his continued drug use while on pre-trial release.
      At the sentencing hearing, Jones’s counsel did not raise any additional
objections on the record, stating that the written objection summarized his argu-
ment. The court then overruled Jones’s objection:
      Mr. Jones’ lack of responsibility is clearly demonstrated by the
      undisputed evidence. He was observed selling crack cocaine on Jan-
      uary 15, 2010, arrested and bonded out. He continued to do that.
      He continued as he has continued in most of his life in violation of
      the law. He was arrested on June 30th. He was not given an oppor-
      tunity to continue. He was in state custody until he was tendered
      to federal custody on January 11, 2011. He was bonded out by the
      United States magistrate judge less than ten days. Whatever the
      circumstances were, the Court and the information provided the
      Court does not indicate that Mr. Jones really made any valid effort
      to stop the criminal conduct that he’s been on this track for a long
      time.

The court adopted the PSR’s guideline range and sentenced Jones to sixty-six
months in prison and three years of supervised release.


                                         II.
      Generally, this court reviews a sentencing decision under a two-step pro-
cess. Gall v. United States, 552 U.S. 38, 51 (2007). First, we determine whether
the district court committed a “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guide-
lines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the


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                                  No. 11-50493
chosen sentence.” Id. “If the sentencing decision is procedurally sound, we then
consider the ‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.’” United States v. Dominguez-Alvarado, 695 F.3d
324, 327 (5th Cir. 2012) (quoting Gall, 552 U.S. at 51).
      If, however, a defendant fails to object properly to an alleged error at sen-
tencing, we review the reasonableness of the sentence for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To object prop-
erly, the defendant must “alert the [district] court to the legal argument he now
presents.” United States v. Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir.
2007).
      Jones did not object in a way that placed the district court on notice of the
error he now asserts. On appeal, he posits a procedural objection that “the dis-
trict court imposed an unreasonable sentence by denying [him] a reduction for
acceptance of responsibility based on conduct committed before federal charges
were brought.” His objection before the district court, however, made no refer-
ence to whether the court could consider the pre-indictment criminal conduct as
a basis to deny the reduction. Instead, he objected only to the PSR’s recommen-
dation that the reduction be denied “solely because . . . Jones tested positive for
marijuana use shortly after his release but prior to entry of his plea of guilty.”
Similarly, Jones failed to object before the district court to the substantive rea-
sonableness of the sentence. Accordingly, we review both the procedural and
substantive reasonableness of the sentence for plain error. Id. at 273.
      To succeed on plain-error review, an appellant must show (1) error (2) that
was plain (3) and affected his substantial rights, and (4) “seriously affected ‘the
fairness, integrity or public reputation of judicial proceedings.’” United States
v. Jones, 489 F.3d 679, 681 (5th Cir. 2007) (quoting United States v. Olano, 507
U.S. 725, 732 (1993)). “Meeting all four prongs is difficult, ‘as it should be.’”
Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation omitted).

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“The doctrine of plain error serves powerful institutional interests, including
securing the role of the United States District Court as the court of first
instance, as opposed to a body charged to make recommendations to appellate
courts.” United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009).


                                               III.
       A two-level reduction is permitted “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense.” § 3E1.1(a). The commentary offers
several “appropriate considerations” for acceptance of responsibility but
expressly acknowledges that the list does not preclude the consideration of other
factors. § 3E1.1, cmt. n.1.1 Entering a guilty plea, along with admitting to the
relevant conduct, “constitute[s] significant evidence of acceptance of responsi-
bility,” although “this evidence may be outweighed by conduct of the defendant
that is inconsistent with such acceptance of responsibility,” and entering a guilty
plea does not entitle the defendant to a reduction. Id. at n.3.
       No reduction is automatic. “The defendant bears the burden of demon-
strating that he is entitled to the reduction” under § 3E1.1. United States v. Flu-
cas, 99 F.3d 177, 180 (5th Cir. 1996) (citation omitted). “We will affirm a sen-
tencing court’s decision not to award a reduction [ ] under § 3E1.1 unless it is
without foundation.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th
Cir. 2008) (alteration in original) (citation and internal quotation marks omit-
ted). The sentencing court is in the best position to determine whether the
defendant has accepted responsibility, and that evaluation “is entitled to great
deference on review.” § 3E1.1, cmt. n. 5.
       Jones maintains that reliance on pre-indictment behavior to deny the


       1
        The commentary to the sentencing guidelines “is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).

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                                      No. 11-50493
reduction was procedural error. We do not address whether such consideration
would be erroneous, because, despite Jones’s claims to the contrary, there is no
indication that the district court relied on pre-indictment conduct. The court
mentioned the January and June 2010 drug arrests not as independent evi-
dence of failure to accept responsibility, but because the two arrests formed the
basis of the federal indictment, and decision to engage in related illegal conduct
after the indictment demonstrated “that Mr. Jones [did not] really ma[k]e any
valid effort to stop this criminal conduct.”
       The court’s conspicuous failure to mention the April arrest—the sole pre-
indictment incident not part of the underlying federal indictment—further sup-
ports our conclusion. Jones fails to show that the court relied on anything other
than his post-indictment drug use, which he does not contest on appeal. Thus,
there is no error.


                                            IV.
       Jones contests the substantive reasonableness of the sentence and the
decision to reject his request for a sentence at the bottom of the guideline range.
We review for plain error.2
       “[T]he sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) with respect to a particular defendant.” United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (per curiam)
(citing Gall, 552 U.S. at 50). Furthermore, this court presumes reasonableness
if the sentence is within the guideline range. United States v. Alvarado, 691
F.3d 592, 596 (5th Cir. 2012). Jones’s “mere belief that the mitigating factors
presented for the court’s consideration should have been balanced differently is



       2
       United States v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012); see also United States v.
Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009).

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                                  No. 11-50493
insufficient to disturb this presumption.” Id. at 597. Jones’s disagreement with
the district court does not establish error.
      The judgment of sentence is AFFIRMED.




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