United States v. Cuauhutemoc Arteaga-Perez

669 F. App'x 289

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 14, 2016
• Docket: 16-40185 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Cuauhutemoc Arteaga-Perez pleaded guilty to conspiracy to possess, with the intent to manufacture and distribute, methamphetamine, in violation of 21 U.S.C. § 846. He was sentenced, inter alia, to 236 months’ imprisonment.

Arteaga contends the district court clearly erred in calculating the Sentencing Guidelines range by: applying a two-level increase for obstruction of justice, see U.S.S.G. § 3C1.1; and failing to reduce his offense level for acceptance of responsibility, see id, § 3E1.1.

Although post-Booker, the Guidelines are ■ advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the Guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo-, its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Both claims fail.

The record shows Arteaga told agents he had no residence or possessions; he later asked his wife, however, to “go and get [his] things” from his apartment. The “things” Arteaga kept in the apartment included, not only the tax documentation he claimed was the “main reason” for his request to his wife, but also a firearm and narcotics. The court plausibly concluded Arteaga attempted to conceal evidence. See United States v. Juarez-Duarte, 513 F.3d 204,208 (5th Cir. 2008).

Regarding the requested reduction for acceptance of responsibility because Artea-ga later cooperated with agents, subsequent cooperation with the Government after obstructive conduct does not necessarily warrant such a reduction. See United States v. Ayala, 47 F.3d 688, 691 (5th Cir. 1995). Further, under our even more deferential review for such denials than the clearly-erroneous standard, United States v. Fincas, 99 F.3d 177, 180 (5th Cir. 1996), Arteaga’s evidence of cooperation is insufficient to overcome the deference due to the court’s determination this is not one of those “extraordinary cases in which adjustments under both §§ 3C1.1 [obstruction of justice] and 3E1.1 [acceptance of responsibility] may apply”. U.S.S.G. § 3E1.1, cmt. n,4; see United States v. Rodriguez, 942 F.2d 899, 903 (5th Cir. 1991).

AFFIRMED.

* 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.