     Case: 17-31006      Document: 00514796956         Page: 1    Date Filed: 01/16/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-31006                   United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      January 16, 2019
UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
              Plaintiff-Appellee,                                           Clerk


v.

ERNESTO MORENO,

              Defendant-Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CR-76-7


Before JONES, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       On the eve of trial, Ernesto Moreno pleaded guilty to knowingly
conspiring to distribute more than 500 grams of methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. This drug-trafficking crime
triggers a mandatory minimum sentence of 120 months and a maximum of life.
See 21 U.S.C. § 841(b)(1)(A)(viii). The district court sentenced Moreno to 372




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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months. Moreno argues the district court misapplied the Guidelines. We
affirm.
                                       I.
       A grand jury indicted Moreno for knowingly conspiring to distribute (and
possess with intent to distribute) 500 or more grams of methamphetamine.
The district court set the case for trial. On the scheduled first day of trial,
however, Moreno pleaded guilty. He did so without a plea agreement.
       Moreno signed a nine-page factual basis to support his plea.        In it,
Moreno admitted participating in a drug-trafficking conspiracy from 2011 to
2015. He further admitted he was a “leader” of the conspiracy. He admitted
conspiring with family members and others to distribute drugs from California
to Louisiana, Texas, and Tennessee. At times, Moreno shipped the drugs
himself. Other times, he directed one of his co-conspirators to ship the drugs.
The factual basis did not, however, identify the quantity of drugs Moreno
trafficked.
       The final presentence report (“PSR”) did. The PSR described a series of
narcotics seizures and undercover purchases on various dates and in various
places. It specified the types and weights of the various drugs attributable to
Moreno. The PSR concluded the “conspiracy involved the trafficking of at least
17.95941 kilograms of methamphetamine, 3.34 kilograms of cocaine
hydrochloride, 17.38 grams of marijuana, and 5.10 grams of alprazolam.”
       Based on those drug quantities, the PSR assigned a base offense level of
36. See U.S.S.G. § 2D1.1(c)(2). The PSR applied a four-level enhancement for
Moreno’s leadership role and recommended a two-level reduction for
acceptance of responsibility. That yielded a total recommended offense level of
38.




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      At the sentencing hearing, the district court started with the PSR. It
accepted the PSR’s estimate of the drug quantities attributable to Moreno.
Moreno did not object.
      Then the district court considered whether Moreno was a “leader” of his
family’s drug-trafficking organization.    Moreno admitted as much in the
factual basis for his plea. But the initial PSR had failed to recommend a four-
level leadership enhancement under U.S.S.G. § 3B1.1(a). The Government
objected. The probation officer reconsidered and revised the final PSR to
recommend the four-level leadership enhancement. That obviously mooted the
Government’s objection to the initial PSR. But it also confused the record of
who objected to what:
      [THE COURT:]        [T]he probation officer’s response [to the
      Government’s objection] indicates that the role assessment in the
      offense level computation sections for the final PSR have been
      amended to reflect a four-level enhancement pursuant to
      guidelines, Section 3B1.1(a). Thus, [the Government’s] objection
      would also be moot. Is that correct?
      [AUSA]: Correct.
      THE COURT: And, likewise, any objection from the defendant.
      [MORENO’S ATTORNEY]: Yes.
It is unclear whether Moreno’s attorney was saying “Yes, I agree any objection
is moot,” or “Yes, I object.” In all events, Moreno’s attorney said nothing else.
And the district court acted as if no objection was made. It imposed the four-
level leadership enhancement.
      The district court next considered whether Moreno was entitled to a
reduction for acceptance of responsibility. The Guideline on acceptance of
responsibility has two subsections. See U.S.S.G. § 3E1.1(a)–(b). The PSR
recommended a two-level reduction under subsection (a) because the probation
officer believed Moreno “clearly demonstrate[d] acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). Subsection (b) allows the Government to
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request an additional one-level reduction where the defendant “timely” accepts
responsibility, “thereby permitting the government to avoid preparing for trial
and permitting the government and the court to allocate their resources
efficiently.”   U.S.S.G. § 3E1.1(b).   The Government did not request the
subsection (b) reduction because it “had fully prepared for . . . trial and
expended countless hours and significant government resources,” including
flying two state witnesses to the trial location, prior to Moreno’s “change of
heart.”   The district court accepted the Government’s explanation under
subsection (b). The district court also concluded the same rationale precluded
a two-level reduction under subsection (a). Moreno did not object. Accordingly,
he received no reduction under either subsection of § 3E1.1.
      Finally, the district court received evidence on whether Moreno
possessed a firearm during his drug deals. A witness testified that he saw
Moreno pull out a firearm and place it on a table while delivering drugs. The
Government also presented evidence that Moreno posted pictures of drugs and
firearms on a social media page. After considering this evidence, the district
court concluded by a preponderance of the evidence that Moreno possessed a
firearm during drug-trafficking activity.      It therefore applied a two-level
firearm enhancement under U.S.S.G. § 2D1.1(b)(1).
      That brought Moreno’s offense level to 42. That’s 36 (base offense) plus
4 (leadership role) plus 2 (firearm). Moreno’s criminal history placed him in
category III. That yielded a guideline range of 360 months to life. The district
court sentenced Moreno to 372 months in prison. Moreno timely appealed.
                                       II.
      Moreno raises four claims on appeal.        He argues the district court
erroneously found (A) the quantity of Moreno’s drugs, (B) Moreno was a
“leader” of the drug-trafficking organization, (C) Moreno possessed a firearm,


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and (D) Moreno did not timely accept responsibility. Some of these claims are
preserved. Others are not. All are meritless.
                                       A.
      We start with drug quantity.       The PSR attributed to Moreno 14.68
kilograms of methamphetamine recovered from a stash house in El Centro,
California. Moreno argues those drugs should be excluded from his sentence.
Doing so would reduce his base offense level from 36 to 32.
      Moreno affirmatively waived his right to appeal this issue. When a
defendant “intentionally relinquishe[s] or abandon[s] a known right, the issue
is waived.” United States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017). And when
a defendant waives an objection, it is “entirely unreviewable” and “we cannot
address it.” Id. (citation omitted). In Moreno’s sentencing memorandum, he
argued the applicable base level was 30 and sought to “preserv[e] his right to
argue” that not all of the drugs should be attributed to him. But at the
sentencing hearing, Moreno twice told the district court he had no objection to
a sentence based on the drug amounts included in the PSR. This shows that
Moreno “consciously decided to forgo that objection at sentencing.”            Id.
Accordingly, this issue is entirely unreviewable. See id.; United States v. Cupit,
670 F. App’x 273, 273 (5th Cir. 2016) (per curiam).
                                       B.
      Next, we turn to Moreno’s leadership enhancement. Moreno argues he
was merely a drug supplier, not a drug-trafficking leader. He also attacks the
reliability of the Government’s evidence.
      As an initial matter, the standard of review is unclear.         If Moreno
properly preserved the issue, “[a] trial court’s finding that a defendant is a
leader or organizer is a factual finding reviewed for clear error.” United States
v. Haines, 803 F.3d 713, 744 (5th Cir. 2015). But where the defendant fails to
preserve a claim, we are “strictly circumscribed” to plain-error review. Puckett
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v. United States, 556 U.S. 129, 134–35 (2009). That is because the defendant’s
failure to object at sentencing deprives the district court of the “opportunity to
clarify its reasoning or correct any potential errors in its understanding of the
law at sentencing.” United States v. Hernandez-Martinez, 485 F.3d 270, 272
(5th Cir. 2007). Plain-error review likewise applies to “objections that are too
vague [to] . . . alert the court to the legal argument [the party] now presents.”
United States v. Dominguez-Alvarado, 695 F.3d 324, 327–28 (5th Cir. 2012)
(quotation omitted).   Here, the district court confirmed the Government’s
objection to the initial PSR was mooted by the probation officer’s decision to
include a leadership enhancement.           Then the district court said, in a
declarative sentence, “And, likewise, any objection from the defendant.” To
which Moreno’s attorney replied “Yes.”
      We think plain error applies. That’s for two reasons. First, it appears
that Moreno’s attorney was simply agreeing the Government’s previous
objection had been mooted in the final PSR.          Second, in any event, an
unadorned one-word “yes” is insufficient to alert the district court to the basis
for the objection. In either event, plain error would apply. See id.
      But Moreno’s claim would fail under either standard of review. The
aggravating-role “sentencing enhancement is applicable if the defendant is a
leader and not the leader.” United States v. Olguin, 643 F.3d 384, 402 (5th Cir.
2011). Several factors are relevant in assessing whether the defendant is one
of the leaders of a conspiracy:
      [1] the exercise of decision making authority, [2] the nature of
      participation in the commission of the offense, [3] the recruitment
      of accomplices, [4] the claimed right to a larger share of the fruits
      of the crime, [5] the degree of participation in planning or
      organizing the offense, [6] the nature and scope of the illegal
      activity, and [7] the degree of control and authority exercised over
      others.
U.S.S.G. § 3B1.1, cmt. n. 4. Being “a buyer and seller of illegal drugs” alone is
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not enough to show a defendant is a leader. United States v. Betancourt, 422
F.3d 240, 245 (5th Cir. 2005). But “[a] person’s status as a distributor in a drug
conspiracy is relevant in determining both the degree of participation in
planning or organizing the offense and the nature and scope of the illegal
activity.” Haines, 803 F.3d at 744 (quotation omitted).
      In this case, several factors support the district court’s imposition of the
aggravating-role enhancement. Moreno admitted he was a “leader” of the
drug-trafficking organization. A Government witness also testified to that
effect. Furthermore, the PSR detailed an instance where Moreno instructed a
co-conspirator to “find a safe location to store the narcotics and await further
instructions.” See United States v. Akins, 746 F.3d 590, 610 (5th Cir. 2014)
(concluding the district court did not err in applying an aggravating-role
sentencing enhancement when the defendant provided instructions “on what
to do with the drugs”). The PSR also detailed Moreno’s responsibilities for the
drug-trafficking organization’s financial affairs, including directing deposits of
funds and planning a potential expansion to Nashville. See United States v.
Benavidez, 360 F. App’x 525, 527 (5th Cir. 2010) (per curiam) (explaining
“[s]omeone with major responsibilities on the financial side of a criminal
enterprise” qualifies for “the leadership enhancement under Section
3B1.1(a)”). And at least on one occasion, Moreno “fronted” some drugs to a co-
conspirator so he could make enough money to repay Moreno a previous debt.
See United States v. Wilson, 622 F. App’x 393, 402–03 (5th Cir. 2015) (per
curiam) (considering a defendant’s fronting of drugs to be evidence of control).
Based on this evidence, it was not clear error, much less plain error, for the
district court to impose the four-level sentencing enhancement.
      Moreno argues this evidence was too unreliable or conclusory for the
district court to rely on it. We disagree. The PSR did not merely conclude
Moreno was a leader; it provided detailed examples of how Moreno organized
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the conspiracy and exercised control over co-conspirators. And “[f]indings of
fact included in a ‘PSR are considered reliable and may be adopted without
further inquiry if the defendant fails to present competent rebuttal evidence.’ ”
United States v. Tisdale, 264 F. App’x 403, 409 (5th Cir. 2008) (quoting United
States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998)). Moreno did not do so.
                                       C.
      We turn now to Moreno’s gun possession. Under the Guidelines, “the
defendant’s sentence should be increased by two levels whenever, in a crime
involving the manufacture, import, export, trafficking, or possession of drugs,
the defendant possessed a dangerous weapon.” United States v. Cooper, 274
F.3d 230, 245 (5th Cir. 2001) (citing U.S.S.G. § 2D1.1(b)(1)). This two-level
enhancement should be applied if the Government shows “by a preponderance
of the evidence that a temporal and spatial relation existed between the
weapon, the drug trafficking activity, and the defendant.”        Id. (quotation
omitted). Moreno preserved this claim of error, so our review is for clear error.
      There is none. A witness testified he saw Moreno take out a gun while
Moreno was delivering drugs. Moreno contends that testimony was unreliable,
in part because the witness was a drug addict.                But “[c]redibility
determinations in sentencing hearings are peculiarly within the province of
the trier-of-fact.” United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996)
(quotation omitted). And the district court did not clearly err by crediting the
witness’s testimony despite his drug use. Cf. United States v. Armendariz, 663
F. App’x 350, 352–53 (5th Cir. 2016) (affirming judgment of district court when
it was based, in part, on an admission made by a defendant who used heroin).
Furthermore, separate photographs posted on social media of Moreno, drugs,
money, and guns corroborated Moreno’s use of a firearm in connection with his
drug transactions. Because it is more than plausible Moreno used a gun while
distributing methamphetamine, the district court did not clearly err by
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applying the firearm enhancement. See Cooper, 274 F.3d at 238 (“A factual
finding is not clearly erroneous if it is plausible in light of the record read as a
whole.”).
                                        D.
        Finally, Moreno argues the district court clearly erred by declining to
award a two-level reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a). Again, we disagree.
        As a threshold matter, our standard of review is something tougher than
clear error. That’s for two reasons. First, “[t]his Court will affirm a sentencing
court’s decision not to award a reduction [under § 3E1.1(a)] unless it is without
foundation, a standard of review more deferential than the clearly erroneous
standard.” United States v. Hott, 866 F.3d 618, 620 (5th Cir. 2017) (alteration
omitted) (quotation omitted). Second, plain-error review applies whenever a
defendant forfeits his objection—as Moreno did here. See Puckett, 556 U.S. at
134.     When the district court sua sponte declined to apply the two-level
reduction, Moreno did not object. Nor did he object later in the sentencing
hearing when the district court gave the parties a final opportunity to present
arguments or objections to the Guidelines calculations.
        Under either standard—“without foundation” or plain error—Moreno’s
claim fails. “This court has routinely upheld the denial of a reduction for
acceptance of responsibility when a defendant waits until the eve of trial to
enter a guilty plea.” United States v. Taylor, 331 F. App’x 287, 288 (5th Cir.
2009) (per curiam) (collecting cases). That is what happened here. And that
is more than enough to warrant rejecting Moreno’s claim.
        Moreno’s only counterargument is out-of-circuit precedent suggesting a
late guilty plea alone is insufficient to deny a reduction under § 3E1.1. See
United States v. Hollis, 823 F.3d 1045, 1049 (6th Cir. 2016) (per curiam);
United States v. Kumar, 617 F.3d 612, 637 (2d Cir. 2010). It is not obvious that
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either case stands for that proposition.        See Hollis, 823 F.3d at 1049
(acknowledging a guilty plea “on the eve of or during trial” might indicate a
defendant is not truly accepting responsibility); Kumar, 617 F.3d at 637
(acknowledging that “under certain circumstances the lateness of a plea might
indeed weigh against the defendant”). Moreover, even assuming (without
deciding) a court may not deny a § 3E1.1(a) reduction solely due to a late guilty
plea, other reasons support the denial here. See United States v. Diaz, 39 F.3d
568, 571 (5th Cir. 1994) (explaining that if a valid reason supports the district
court’s ruling, it can be affirmed).    The most obvious reason is Moreno
“blame[d] others”—namely, his family—“for his criminal activity” during his
statement at sentencing. See United States v. Wilder, 15 F.3d 1292, 1299 (5th
Cir. 1994) (concluding a defendant did not show “sincere contrition” when he
blamed others and downplayed his own participation in the offense). Moreno
therefore “[has] not show[n] plain error and, in any event, the district court
had foundation to deny the reduction.” Hott, 866 F.3d at 620.
      AFFIRMED.




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