United States v. Gerardo Preciado-Delacruz
801 F.3d 508
5th Cir.
2015
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UNITED STATES of America, Plaintiff-Appellee, v. Gerardo PRECIADO-DELACRUZ, Defendant-Appellant.

No. 14-11023.

United States Court of Appeals, Fifth Circuit.

Sept. 15, 2015.

801 F.3d 508

during which the benefit to the employee predominates, see id. § 785.19.

This conclusion is supported by our cases holding that “predominant benefit” is typically a fact question on which the employer beаrs the burden.7 (“Whether meal time is predominantly for the benefit of the employer is a question of fact that is ordinarily resolved by the trier of fact after hearing all of the evidence.“); see also (“The ‘predominant benеfits test’ is applied to determine who primarily benefits from the period. This is a question of fact....“); (deferring to the “district court‘s fact conclusion that the meal periods are not compensable“). Indeеd, the impact of the travel restriction is not the only disputed fact that a jury could find material to the predominant benefit inquiry. We noted above a dispute about the extent to which the guards’ freedom was limitеd while in the company car. See (finding the meal break compensable partly “[b]ecause [the employer] required all workers to remain on-site” during the meal breaks).

We therefore AFFIRM summary judgment on the guards’ сlaims based on the main gate, the truck gate, and the 6:00 a.m. through midnight shifts at the flight-line gate when the mandatory commute time was de minimis. But because a jury could find that the remaining meal breaks did not allow enough time for the employees to use the break for their own purposes to qualify as noncompensable, we REVERSE the district court‘s grant of summary judgment and REMAND for further proceedings.

Amanda R. Burch, Assistant U.S. Attorney, U.S. Attorney‘s Office, Lubbock, TX, James Wesley Hendrix, ‍​‌‌‌‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌​‌​​‍Assistant U.S. Attorney, U.S. Attorney‘s Office, Dallas, TX, for Plaintiff-Appellee.

Todd Alan Durden, Durden Law Firm, Keller, TX, for Defendant-Appellant.

Before JONES, SMITH, and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Gerardo Preciado-Delacruz appeals his sentence for рossession with intent to distribute marihuana. First, he complains that the district court violated his Fifth Amendment right against self-incrimination by denying him a downward adjustment for acceptance of responsibility after he refused to speak openly about relevant conduct. Second, he claims that the above-guidelines sentence was substantively unreasonable. We affirm.

I.

In October 2013, acting on a confidential source‘s tip, DEA оfficers staked out Cesar Loma‘s house in Fort Worth, Texas, to investigate marihuana trafficking. On October 11, officers saw Preciado-Delacruz and an associate, Pedro Lopez-Maya, arrive in a truсk, enter the house with a box, meet with Loma for a short time, and exit with a grocery bag. Officers stopped the truck after it left, and Lopez-Maya as the driver consented to a search. Inside, the officers found about seven pounds of marihuana and the bag containing over $14,000. A later search of the house uncovered a gun and fourteen more pounds of marihuana; Preciado-Delacruz‘s fingerprints were discovered on the packaging. Preciado-Delacruz pleaded guilty of one count of possession with intent to distribute marihuana in violation of 21 U.S.C. § 841(a)(1).

A probation officer met with Preciado-Delaсruz to compile his presentence investigation report (“PSR“). Applying the 2013 U.S. Sentencing Guidelines (the “Guidelines“), the PSR reflected a base offense level of 18, assessed a two-level increase becаuse Loma possessed a dangerous weapon during the drug deal, and concluded that the criminal-history category was I. Importantly, the PSR advised the district court against awarding a two-level reduction for аcceptance of responsibility under U.S.S.G. § 3E1.1. The probation officer provided several reasons why: Preciado-Delacruz initially had said that “he just wants to serve his time for the offense and go home, rather than answer questions about his involvement.” When he did agree to answer questions, he was hesitant to talk about the offense and minimized his involvement in the drug deliveries, evidence of which indicated that his involvement was much greater. He first said that he had touched the marihuana only to see what it was, then revised that to say he loaded the packages into the truck. Otherwise, he refused to discuss any details other than thosе specifically related to the charged crime.

Without the adjustment under § 3E1.1, the PSR correctly calculated the advisory sentencing range as 33 to 41 months. Preciado-Delacruz filed timely objections, including one for withholding the acceptance-of-responsibility adjustment.

At sentencing, the district court adopted the PSR‘s factual findings. Preciado-Delacruz renewed his objection to the withholding of the acceptance-of-responsibility adjustment, and the court overruled it. The court then correctly ‍​‌‌‌‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌​‌​​‍calculated the Guidelines’ range but indicated afterwards that it intended to impose an outside-the-guidelines sentence. After heаring from defense counsel and reviewing the file, the court concluded that it would depart upward.

Accounting for the statutory factors in 18 U.S.C. § 3553(a), the court explained that it was imposing an above-guidelines sentence in light of Preciado-Delacruz‘s еxtensive history of illegal entry into the United States: Border Patrol agents had apprehended him seven times for illegally entering the country, and he was present illegally at the time of the offense. But in describing that history, the court misstated two facts. First, it mistakenly stated that Preciado-Delacruz had been convicted earlier of illegal reentry; in fact, his conviction was for illegal entry, for which he served 120 days. Second, the court noted that he had been forcibly removed from the United States a number of times. But in truth, the government had removed him only once; on six other occasions, Preciado-Delacruz was granted voluntary dеparture. Defense counsel raised no objection nor offered any correction.

The court imposed a sentence of sixty months—the statutory maximum—and two years’ supervised release. It then dеscribed the standard conditions of supervised release, informed Preciado-Delacruz of the right to appeal, and answered a few requests from counsel. Finally, just before the sentencing hearing adjourned, defense counsel stated the following objection: “And for the record, my client respectfully objects to the sentence as substantively unreasonable.”

II.

Ordinarily, “[t]his court reviews a district court‘s refusаl to reduce a defendant‘s offense level for acceptance of responsibility under USSG § 3E1.1 with a standard ‘even more deferential than a purely clearly erroneous standard.‘” (quoting ). We will not second-guess the decision unless it is without foundation. But when faced with a preserved constitutional challenge to the Guidelines’ application, our review is de novo. See ; .

On the challenge to substantive reasonableness, we nоrmally review for abuse of discretion, accounting for the totality of the circumstances. See . But that standard does not apply here because Preciado-Delacruz failed properly to preserve his claim. “To preserve error, an objection must ‍​‌‌‌‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌​‌​​‍be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correсtion.” . Defense counsel‘s generic objection to substantive reasonableness does not meet that standard because it failed to cite any of the specific grounds now raised on appеal. See ; . Thus, our review is for plain error.1

III.

A.

Preciado-Delacruz asks us to answer in his favor a question the Supreme Court deliberately has left unresolved: whether, consistently with the Fifth Amendment, a court may rightfully consider a defendant‘s silence or refusal to answer questions about relevant conduct when deciding whether to grant § 3E1.1‘s downward adjustment for acceptance of responsibility. See . Binding precedent of this court, however, dooms Preciado-Delacruz‘s theory.

In , we faced the same claim raised here undеr an earlier version of the Guidelines.2 We held that rewarding a defendant who expresses contrition and cooperates with the government is not the same as compelling him to incriminate himself. . “To hold thе acceptance of responsibility provision unconstitutional would be to say that defendants who express genuine remorse for their actions can never be rewarded at sentencing. This the Constitution does not require.” (quoting ).3 That holding applies squarely here.4 Consequently, any inference that the district court drew from the defendant‘s silence for purposes of § 3E1.1 was permissible. That, coupled with the other behaviors described in the PSR that are inсonsistent with the acceptance ‍​‌‌‌‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌​‌​​‍of responsibility, suggests that the decision to withhold the downward adjustment was not without foundation.

B.

Preciado-Delacruz relies on the district court‘s apparent factual mistakes as rendering his sentence substantively unreasonable. Those errors, however, could have been corrected during sentencing, yet Preciado-Delacruz raised no objection. “Questions of fаct capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” . Thus they are no basis for overturning the sentence. Further, Preciado-Delacruz claims that the court failed properly to weigh the sentencing factors in 18 U.S.C. § 3553(a). But upon review of the sentencing hearing, we see no clear or obvious error in how the court determined аnd explained the sentence. See . The court considered the § 3553(a) factors, and the sentence does not exceed the statutory maximum. As a result, the above-guidelines sentence was not plainly erroneous. See id. at 393-94; .

AFFIRMED.

JERRY E. SMITH

UNITED STATES CIRCUIT JUDGE

Notes

1
The government‘s failure to urge for plain-error review does ‍​‌‌‌‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌​‌​​‍not obviate our duty to apply the appropriate standard. (en banc).
2
Mourning was statutorily overruled on other grounds as explained in .
3
Indeed, a contrary rule would run counter to the principles undergirding all plea agreements, which are themselves offers of a benefit in exchange for waiving constitutional rights.
4
See (noting that the Court has yet to resolve the issue and that courts of appeals appear divided).
7
In some circuits, the employee has the burden to prove the time is compensable. See, e.g., (“Plaintiffs cite Fourth and Fifth Circuit case law as support for the proposition that the [employer] bears the burden because mealtimеs qualify as an ‘exemption’ within the meaning of the FLSA. We are not persuaded ... [m]ealtimes, then, are not exempt from compensation, but rather they are not compensable in the first instance.“); (“[I]t is the employee who bears the burden of proving that he or she performs substantial duties and spends his or her meal time predominately for the employer‘s benefit.“).
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