United States v. Dion Barnes

Fifth Circuit

United States v. Dion Barnes

688 F. App'x 311

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 2, 2017

Docket16-30828 Summary Calendar

StatusUnpublished

This text of 688 F. App'x 311 (United States v. Dion Barnes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Dion Barnes, 688 F. App'x 311 (5th Cir. 2017).

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Opinion

PER CURIAM: *

Dion Paul Barnes appeals his conviction and sentence following his guilty plea, pursuant to a written agreement, to conspiracy to make, utter, and possess counterfeit securities. He argues, for the first time on appeal, that the Government breached its agreement to recommend a third-level reduction in his offense level for acceptance of responsibility and to permit him to freely litigate the loss amount attributable to him. We review for plain error. See Puckett v. United States, 556 U.S. 129, 134, 143, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Hinojosa, 749 F.3d 407, 411 (5th Cir. 2014).

We look to whether the Government’s conduct was consistent with the parties’ reasonable understanding of the agreement. See Hinojosa, 749 F.3d at 413; United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). Here, the Government satisfied its obligation when it moved in the plea agreement for a one-point reduction. Absent the district court’s award of the initial two levels for acceptance of responsibility, the Government cannot be said to have had any further obligation under the plea agreement with respect to acceptance of responsibility. See U.S.S.G. § 3E1,1(b); Hinojosa, 749 F.3d at 413; United States v. Hernandez-Garcia, 442 Fed.Appx. 136, 137 (5th Cir. 2011); United States v. Stetzel, 183 Fed.Appx. 432, 434 (5th Cir. 2006). Nor does the record show that the Government breached the plea agreement with respect to Barnes’s freedom to litigate, the loss amount, as the Government’s argument was that Barnes was not entitled to a two-level reduction because he had lied and had denied relevant conduct.

Even if, for the sake of argument, the Government’s objection to Barnes’s receiving a reduction for acceptance of responsibility was contrary to Barnes’s reasonable understanding of the agreement, he cannot show the Government’s purported breach affected his substantial rights. See Hinojosa, 749 F.3d at 411. Given Barnes’s conduct with respect to his identity and that he denied all relevant conduct, he was not entitled to a two-level reduction for acceptance of responsibility under § 3El.l(a). *312 See U.S.S.G. § 3E1.1(a), (b), comment. (nn.1(A), 3).

The judgment of the district court is 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,

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PER CURIAM: *

Dion Paul Barnes appeals his conviction and sentence following his guilty plea, pursuant to a written agreement, to conspiracy to make, utter, and possess counterfeit securities. He argues, for the first time on appeal, that the Government breached its agreement to recommend a third-level reduction in his offense level for acceptance of responsibility and to permit him to freely litigate the loss amount attributable to him. We review for plain error. See Puckett v. United States, 556 U.S. 129, 134, 143, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Hinojosa, 749 F.3d 407, 411 (5th Cir. 2014).

We look to whether the Government’s conduct was consistent with the parties’ reasonable understanding of the agreement. See Hinojosa, 749 F.3d at 413; United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). Here, the Government satisfied its obligation when it moved in the plea agreement for a one-point reduction. Absent the district court’s award of the initial two levels for acceptance of responsibility, the Government cannot be said to have had any further obligation under the plea agreement with respect to acceptance of responsibility. See U.S.S.G. § 3E1,1(b); Hinojosa, 749 F.3d at 413; United States v. Hernandez-Garcia, 442 Fed.Appx. 136, 137 (5th Cir. 2011); United States v. Stetzel, 183 Fed.Appx. 432, 434 (5th Cir. 2006). Nor does the record show that the Government breached the plea agreement with respect to Barnes’s freedom to litigate, the loss amount, as the Government’s argument was that Barnes was not entitled to a two-level reduction because he had lied and had denied relevant conduct.

Even if, for the sake of argument, the Government’s objection to Barnes’s receiving a reduction for acceptance of responsibility was contrary to Barnes’s reasonable understanding of the agreement, he cannot show the Government’s purported breach affected his substantial rights. See Hinojosa, 749 F.3d at 411. Given Barnes’s conduct with respect to his identity and that he denied all relevant conduct, he was not entitled to a two-level reduction for acceptance of responsibility under § 3El.l(a). *312 See U.S.S.G. § 3E1.1(a), (b), comment. (nn.1(A), 3).

The judgment of the district court is 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,

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688 F. App'x 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dion-barnes-ca5-2017.

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