United States v. Limon ( 2023 )

Case: 22-50622 Document: 00516697060 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50622
Summary Calendar FILED
____________ March 31, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Gustavo Limon,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:21-CR-1212-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Gustavo Limon appeals the 27-month sentence of imprisonment
imposed following his guilty plea conviction for conspiracy to transport illegal
aliens. He argues that the district court erred by denying him an adjustment
for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Although the
district court initially agreed with the presentence report’s application of that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50622
adjustment to Limon’s sentence, the district court subsequently determined
that Limon would not receive that adjustment. Limon did not object to the
denial of the adjustment for acceptance of responsibility.
Even when error is preserved, we review the district court’s denial of
acceptance of responsibility using “a standard even more deferential than a
purely clearly erroneous standard.” United States v. Washington, 340 F.3d
222, 227 (5th Cir. 2003) (internal quotation marks and citation omitted).
Under that standard, the district court’s denial “should not be disturbed
unless it is without foundation.” Id. (internal quotation marks and citation
omitted). However, we review unpreserved challenges under the plain error
standard, which a party satisfies by showing an error that is clear or obvious–
rather than subject to reasonable dispute–and affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If the party makes that
showing, this court has the discretion to correct the error only if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. (internal quotation marks and citation omitted). The burden of
establishing entitlement to relief for plain error is on the party claiming it.
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). Meeting all four
prongs of the plain error standard “is difficult, as it should be.” Puckett, 556
U.S. at 135 (internal quotation marks and citation omitted).
On appeal, Limon concedes that he erroneously failed to refer to the
conspiracy element for his offense of conviction during his presentence
report interview, but he contends that the district court should have granted
him acceptance of responsibility because he specified during that interview
that he accepted responsibility for “this offense” and he had previously
admitted to the conspiracy element during his criminal proceedings.
However, Limon does not cite to any authority showing that the district court
committed clear or obvious error in similar circumstances. See United States
v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015) (noting that a “lack of binding
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No. 22-50622
authority is often dispositive in the plain-error context”). He also fails to
address the third or fourth prong of plain error review. Thus, Limon has not
met his burden of showing reversible plain error. See Puckett, 556 U.S. at 135;
Dominguez Benitez, 542 U.S. at 82.
Accordingly, the district court’s judgment is AFFIRMED.
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