     Case: 16-10244      Document: 00513809844         Page: 1    Date Filed: 12/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-10244                                FILED
                                  Summary Calendar                      December 22, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE LUIS MARIN-PAYAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-141-1


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
       Jose Luis Marin-Payan pleaded guilty of possession of a controlled
substance with intent to distribute, and he was sentenced within the
guidelines range to a 60-month term of imprisonment and to a three-year
period of supervised release.         Marin-Payan raises issues challenging his
sentence. After United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for procedural error and substantive reasonableness under an abuse


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10244

of discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th
Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). Ordinarily,
the district court’s application of the Guidelines is reviewed de novo, and its
fact findings are reviewed for clear error. United States v. Trujillo, 502 F.3d
353, 356 (5th Cir. 2007). A factual finding is not clearly erroneous if it is
plausible in light of the record as a whole. United States v. Alaniz, 726 F.3d
586, 618 (5th Cir. 2013).
      Where error has been forfeited by the failure to make a timely objection,
this court’s review is for plain error. United States v. Arviso-Mata, 442 F.3d
382, 384 (5th Cir. 2006). To establish plain error, an appellant must show
a forfeited error that is clear or obvious and that affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If the appellant makes this
showing, “the court of appeals has the discretion to remedy the error-discretion
which ought to be exercised only if the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted).
      Marin-Payan contends that, in determining the drug quantity on the
basis of $5,470 in cash seized at the time of his arrest, the district court erred
by failing to find that the amount of seized drugs did not reflect the scale of the
offense, contrary to U.S.S.G. § 2D1.1, comment. (n.5) (2015). Marin-Payan
invokes United States v. Henderson, 254 F.3d 543, 544 (5th Cir. 2001) (Garza,
J., concurring). He concedes that this court’s review is for plain error.
      The district court adopted the PSR’s findings. We observe that Note 5
was before the court because it was discussed in the addendum to the
presentence report and in the parties’ responses to the addendum. The district
court expressly relied on the addendum and the Government’s response in
overruling Marin-Payan’s objection to the lack of evidence supporting the cash-



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                                 No. 16-10244

to-drugs conversion.    Marin-Payan has not shown that the district court
committed a clear or obvious error in failing to make findings under Note 5.
See Puckett, 556 U.S. at 135.
      Marin-Payan also contends that the district court clearly erred in finding
that the evidence supported conversion of the cash to drug-quantity amounts.
The district court’s factual finding was plausible in light of the record as a
whole and was not clearly erroneous. See Alaniz, 726 F.3d at 618. The court
was not required to accept as true Marin-Payan’s assertions in his post-arrest
statement minimizing the extent of his drug dealing. See id. There was ample
circumstantial evidence supporting the district court’s finding that the cash
more accurately reflected the scale of Marin-Payan’s offense, and Marin-Payan
did not present rebuttal evidence or otherwise show that the information in
the PSR was unreliable. See id.; see also Trujillo, 502 F.3d at 357. The
judgment is AFFIRMED.




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