United States v. Necaise

Fifth Circuit

United States v. Necaise

329 F. App'x 574

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 5, 2009

Docket08-60856

StatusUnpublished

This text of 329 F. App'x 574 (United States v. Necaise) 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. Necaise, 329 F. App'x 574 (5th Cir. 2009).

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Opinion

PER CURIAM: *

Mark A. Necaise appeals the 121-month sentence imposed following his guilty plea conviction for distribution of methamphetamine and conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841, 846. He challenges the district court’s denial of a two-level reduction in his offense level for acceptance of responsibility under U.S.S.G. § 3E1.1.

Because, as Necaise concedes, he did not object to this issue in the district court, review of this question is for plain error. United States v. Medina-Anicacio, 325 F.3d 638, 647 (5th Cir.2003). To show plain error, the appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, — U.S.-, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (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.

In the instant case, Necaise attempted to escape from the Madison County Detention Center, which resulted in an enhancement for obstruction of justice. Conduct resulting in an enhancement for obstruction of justice “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” § 3E1.1, comment. (n.4); United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir.), cert. denied, — U.S.-, 128 S.Ct. 2452, 171 L.Ed.2d 248 (2008). Necaise argues that his severe emotional problems, as evidenced by his psychiatric treatment and suicide attempt, constitute an “extraordinary case” that warrants a reduction for acceptance of responsibility notwithstanding the enhancement for obstruction of *575 justice. However, we discern no reversible plain error in light of the applicable law and facts of this case.

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: *

Mark A. Necaise appeals the 121-month sentence imposed following his guilty plea conviction for distribution of methamphetamine and conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841, 846. He challenges the district court’s denial of a two-level reduction in his offense level for acceptance of responsibility under U.S.S.G. § 3E1.1.

Because, as Necaise concedes, he did not object to this issue in the district court, review of this question is for plain error. United States v. Medina-Anicacio, 325 F.3d 638, 647 (5th Cir.2003). To show plain error, the appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, — U.S.-, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (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.

In the instant case, Necaise attempted to escape from the Madison County Detention Center, which resulted in an enhancement for obstruction of justice. Conduct resulting in an enhancement for obstruction of justice “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” § 3E1.1, comment. (n.4); United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir.), cert. denied, — U.S.-, 128 S.Ct. 2452, 171 L.Ed.2d 248 (2008). Necaise argues that his severe emotional problems, as evidenced by his psychiatric treatment and suicide attempt, constitute an “extraordinary case” that warrants a reduction for acceptance of responsibility notwithstanding the enhancement for obstruction of *575 justice. However, we discern no reversible plain error in light of the applicable law and facts of this case.

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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