     Case: 09-40495     Document: 00511066715          Page: 1    Date Filed: 03/30/2010




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

                                                  FILED
                                                                           March 30, 2010
                                     No. 09-40495
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

SANTOS BALMACEDA-GOMEZ,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-1346-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Santos Balmaceda-Gomez appeals the thirty-month sentence imposed
following his guilty plea conviction for attempted illegal reentry after having
previously been deported. He argues that the Government incorrectly applied
the Sentencing Guidelines because it declined to file a motion pursuant to
U.S.S.G. § 3E1.1(b) to award him an additional one-level decrease for acceptance
of responsibility. He also argues that the district court erred in applying an
eight-level aggravated felony enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C)

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40495

based on a previous Delaware conviction for possession of cocaine within 1000
feet of a school.
         When reviewing the Government’s refusal to file a Section 3E1.1(b)
motion, we assess whether the refusal was based on an unconstitutional motive
or was not rationally related to a legitimate governmental purpose. See United
States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008). A defendant is not entitled
to a Section 3E1.1(b) decrease unless the Government files a motion requesting
the adjustment. Id. at 378. In addition, a defendant’s refusal to waive his right
to an appeal is a legitimate basis rationally related to the purposes of § 3E1.1(b).
Id.      Balmaceda-Gomez does not allege that the Government had an
unconstitutional motive, but asserts that the decision was not rationally related
to a legitimate purpose because he was not offered and, thus, could not have
refused, a plea agreement containing a waiver of appeal provision.
         Balmaceda-Gomez did not inform the district court that no plea agreement
was offered nor did he indicate his willingness to waive his right to appeal. He
was silent even when the district court noted its belief that the Government’s
refusal to file a Section 3E1.1(b) motion was proper in light of the fact that it
would have to defend the sentence on appeal. Moreover, to the extent that
Balmaceda-Gomez argues that the Government erred in refusing to file the
Section 3E1.1(b) motion because he did not put it through the burden of
preparing for trial, the argument is also without merit. Balmaceda-Gomez did
not reveal an intent to plead guilty until the day after his jury trial was
scheduled. Avoiding the burden of preparing for trial is also a legitimate basis
rationally related to the purposes of Section 3E1.1(b). See § 3E1.1(b); Newson,
515 F.3d 377-78.
         Balmaceda-Gomez argues that his Delaware conviction pursuant to Title
16, § 4767(a)(1) of the Delaware Code of 1974, although classified by the state
as a felony, was for mere possession and does not qualify as a drug trafficking
offense under the Controlled Substances Act. Therefore, the district court erred

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                                 No. 09-40495

in applying the eight-level aggravated felony enhancement pursuant to
Section 2L1.2(b)(1)(C). Balmaceda-Gomez did not raise this argument in the
district court. Accordingly, review is for plain error only. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). To show plain error, the appellant must show an obvious forfeited error
that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).    If the appellant 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.
      Wilmington, Delaware police discovered over 126 grams of cocaine in
Balmaceda-Gomez’s home, which was located within 1000 feet of a school. We
have held that the possession of a large quantity of drugs is by itself sufficient
to indicate an intent to distribute. See United States v. Hernandez-Beltran, 867
F.2d 224, 226 (5th Cir. 1989). Therefore, Balmaceda-Gomez’s conduct formed
the basis of a federal aggravated felony charge. See 21 U.S.C. §§ 841(a)(1) &
860(a); United States v. Wake, 948 F.2d 1422, 1430-31 (5th Cir. 1991) (construing
Section 860 to proscribe possession, within 1000 feet of a school, of a quantity of
a controlled substance sufficient to evidence an intent to distribute).
      The judgment of the district court is AFFIRMED.




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