United States v. Cuauhutemoc Arteaga-Perez , 669 F. App'x 289 ( 2016 )

Case: 16-40185 Document: 00513718269 Page: 1 Date Filed: 10/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40185 FILED
Summary Calendar October 14, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CUAUHUTEMOC ARTEAGA-PEREZ, also known as Memo, also known as
Temo,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:13-CR-160-2
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
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 235 months’ imprisonment.
Arteaga contends the district court clearly erred in calculating the
Sentencing Guidelines range by: applying a two-level increase for obstruction
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-40185
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 (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 Arteaga 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. Flucas, 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
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No. 16-40185
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.
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