United States v. Necaise ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2009
No. 08-60856
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARK A. NECAISE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:07-CR-27-1
Before DAVIS, GARZA, and PRADO, Circuit Judges:
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-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-60856
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, 129 S. Ct. 1423, 1429 (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, 128 S. Ct. 2452 (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 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.
2