United States v. Desalme

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 27, 2003
Charles R. Fulbruge III
Clerk
No. 03-50206
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH DESALME,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-550-ALL
--------------------
Before SMITH, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Joseph DeSalme pleaded guilty to one charge of possession of
a listed chemical with intent to manufacture methamphetamine in
violation of 21 U.S.C. § 841. The district court sentenced him
to 170 months in prison and a three-year term of supervised
release. DeSalme argues on appeal that the district court erred
in declining to grant him the one-level reduction for acceptance
of responsibility found in U.S.S.G. § 3E1.1(b).
*
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that this opinion should not be published and is not precedent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. 03-50206
-2-
Because DeSalme did not raise this specific argument in the
district court, the plain error standard of review applies. See
United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994).
Under the plain-error standard, this court may correct forfeited
errors only when the appellant shows: (1) there is an error,
(2) that is clear and obvious, and (3) that affects his
substantial rights. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,
507 U.S. 725, 730-37 (1993)). If these factors are established,
the decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 735-736.
The record is ambiguous as to whether the district court
neglected to consider the factors outlined in U.S.S.G. § 3E1.1(b)
or whether the district court determined that DeSalme was not
entitled to this reduction without giving reasons for this
conclusion. The record also does not conclusively establish that
DeSalme was entitled to a reduction under U.S.S.G. § 3E1.1(b)(1)
or (2). Accordingly, there is no clear or obvious error in
connection with the district court’s refusal to grant DeSalme a
one-level reduction under U.S.S.G. § 3E1.1(b). The judgment of
the district court is AFFIRMED.