     Case: 12-10888       Document: 00512319120           Page: 1    Date Filed: 07/24/2013




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

                                                                              FILED
                                                                             July 24, 2013
                                     No. 12-10888
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LINDSEY MONTELONGO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-45-4


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Lindsey Montelongo pleaded guilty of conspiracy to distribute and
possess with intent to distribute methamphetamine, and she was sentenced at
the top of the guidelines range to a 293-month term of imprisonment and to a
five-year period of supervised release. She has appealed her sentence.
       Sentences are reviewed for procedural error and substantive
reasonableness under an abuse of discretion standard.                     United States v.

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 12-10888

Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010).               The district court’s
interpretation or application of the Guidelines is reviewed de novo, and its
factual findings are reviewed for clear error. Id. at 472. “A factual finding is
not clearly erroneous if it is plausible in light of the record read as a whole.”
United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). To the extent
that error was not preserved in the district court, this court’s review is for plain
error. United States v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012). To show
plain error, an appellant must show a forfeited error that is clear or obvious
and that affects her substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). If she makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Montelongo contends that her offense level should have been reduced
pursuant to U.S.S.G. § 3B1.2 because of her minor or minimal role in the
offense. Montelongo contends also that the district court erred in failing to
reduce her offense level pursuant to U.S.S.G. § 2D1.1(b)(15), which is
predicated on receipt of the four-level minimal-participant adjustment under
§ 3B1.2(a). See § 2D1.1(b)(15). The presentence report provides ample support
for the district court’s finding that Montelongo was an average participant in
the conspiracy. See U.S.S.G. § 3B1.2, comment. (nn.3-5). Montelongo and
another coconspirator conducted the majority of the conspiracy’s drug
transactions. She made a payment to a supplier, drugs were stored in her
bedroom, and she was involved in breaking down and repackaging large
quantities of methamphetamine. The district court did not clearly err in
refusing to adjust Montelongo’s offense level because of her minor or minimal
role in the offense. See Villanueva, 408 F.3d at 203.




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                                 No. 12-10888

      The district court clearly erred, Montelongo asserts, in increasing her
offense level by two levels pursuant to U.S.S.G. § 3B1.4 because her children
were present during drug transactions or were otherwise involved in the
offense. Montelongo has not carried her burden of showing that these findings
were based on unreliable information. See United States v. Ollison, 555 F.3d
152, 164 (5th Cir. 2009).
      Montelongo asserts that the district court erred in adjusting her offense
level upward by two levels because the methamphetamine was imported from
Mexico. Although Montelongo challenged this adjustment in the district court,
she did so on other grounds. Accordingly, our review is for plain error. See
Claiborne, 676 F.3d at 438. “Questions of fact capable of resolution by the
district court upon proper objection at sentencing can never constitute plain
error.” Id. (internal brackets, internal quotation marks, and citation omitted).
      Next, Montelongo challenges the district court’s refusal to reduce her
offense level by three levels for acceptance of responsibility. Montelongo was
denied an adjustment for acceptance of responsibility because she failed to
appear as ordered for her rearraignment. Because the district court’s ruling
was not without foundation, it is affirmed. See United States v. Torres, 353 F.
App’x 900, 901 (5th Cir. 2009); United States v. Juarez-Duarte, 513 F.3d 204,
211 (5th Cir. 2008); United States v. Rivera, 248 F. App’x 532, 533 (5th Cir.
2007).
      Finally, Montelongo contends that the sentence imposed was
substantively unreasonable because the district court failed to consider
adequately the nature and circumstances of the offense and her history and
characteristics. Because no objection was asserted in the district court to the
reasonableness of the sentence, our review is for plain error. See United States
v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012). Montelongo has not shown that


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                                 No. 12-10888

the sentence did not account for factors that should receive significant weight,
that it gave significant weight to irrelevant or improper factors, or that it
represents a clear error of judgment in balancing sentencing factors. See id.
Thus, she has not rebutted the presumption of reasonableness accorded to her
within-guidelines sentence. See id. There was no error, plain or otherwise.
The judgment is AFFIRMED.




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