United States v. Ejalte Deleon ( 2018 )

Case: 17-41140 Document: 00514651592 Page: 1 Date Filed: 09/21/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-41140 FILED
Summary Calendar September 21, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
EJALTE DELEON,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-1743-1
Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
After pleading guilty to conspiring to possess with intent to distribute a
controlled substance, Ejalte Deleon was sentenced to 151 months of
imprisonment. On appeal, Deleon raises issues pertaining to the
determination of his offense level under the Sentencing Guidelines.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-41140 Document: 00514651592 Page: 2 Date Filed: 09/21/2018
No. 17-41140
Deleon first challenges the denial of credit for acceptance of
responsibility under U.S.S.G. § 3E1.1. He asserts that he adequately and
timely accepted responsibility for his drug conspiracy offense, and he argues
that he should have been presumed innocent of the additional criminal charge
of transporting an illegal alien, which was lodged against him based on his
conduct while on pretrial release. Deleon notes that, when his sentencing
hearing was held, he had not yet pleaded guilty to the alien transportation
charge. He contends that there was no reliable evidence presented at the
sentencing hearing to show that he did not withdraw from criminal conduct
and that his mere arrest on the charge of transporting an illegal alien is not
enough to warrant denial of acceptance of responsibility.
We are entitled to take judicial notice of the records of the district court.
See ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 n.2 (5th Cir. 1981).
In view of the criminal complaint and sworn affidavit detailing Deleon’s alleged
conduct underlying the alien transportation charge, to say nothing of his
subsequent guilty plea to that charge, we conclude that the district court’s
denial of a § 3E1.1 reduction was not without foundation and should be upheld.
See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008).
Deleon next raises a challenge to the denial of a mitigating role
adjustment pursuant to U.S.S.G. § 3B1.2. However, he fails to argue in his
brief that a mitigating role adjustment was warranted under the facts of his
case. He has therefore waived the issue. See United States v. Reagan, 596
F.3d 251, 254-55 (5th Cir. 2010); see also FED. R. APP. P. 28(a)(8)(A). In any
event, our review shows that the district court’s determination that Deleon was
not a minor or minimal participant is plausible in light of the record read as a
whole, and therefore not clearly erroneous. See United States v. Sanchez-
Villarreal, 857 F.3d 714, 721 (5th Cir. 2017).
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Case: 17-41140 Document: 00514651592 Page: 3 Date Filed: 09/21/2018
No. 17-41140
The primary argument raised in Deleon’s brief as to the mitigating role
issue is that the district court erred by failing to provide a sufficient
explanation for its denial of the adjustment. However, because Deleon did not
object in the district court to the sufficiency of the district court’s explanation
for denying a mitigating role, his challenge is subject to plain error review. See
United States v. Fernandez, 770 F.3d 340, 345 (5th Cir. 2014). Deleon fails to
meet the plain error standard. See Puckett v. United States, 556 U.S. 129, 135
(2009).
As his third and final issue, Deleon contends that the district court
clearly erred in applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(1)
for possession of dangerous weapon. The enhancement was imposed on the
basis of a pellet gun found under a sofa seat cushion in the living room of the
stash house that Deleon rented to facilitate the operations of a drug cartel.
Deleon argues that the Government failed to prove that he possessed the pellet
gun; however, as determined by the district court, Deleon controlled the stash
house and thus may be deemed to have been in constructive possession. See
United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012). Deleon also contends
that there was no evidence that the pellet gun was close to the narcotics stored
within the stash house; however, the record establishes that narcotics were
found at the entrance of the stash house. Deleon has failed to establish clear
error. See United States v. Romans, 823 F.3d 299, 317 (5th Cir. 2016); United
States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
AFFIRMED.
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