United States v. Parra

111 F.4th 651

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Soto PARRA, Defendant-Appellant.

No. 23-50487

United States Court of Appeals, Fifth Circuit

FILED August 5, 2024

Appeal from the United States District Court for the Western District of Texas, USDC No. 4:23-CR-7-1, Walter David Counts, III, U.S. District Judge

Joseph H. Gay, Jr., Assistant U.S. Attorney, Laura Elena Durbin (argued), U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Shane O'Neal, (argued), O'Neal Law, Alpine, TX, for Defendant-Appellant.

Before Smith, Engelhardt, and Ramirez, Circuit Judges.

Irma Carrillo Ramirez, Circuit Judge:

Appellant challenges the district court's application of a sentencing enhancement for obstruction of justice. Finding plain error, we VACATE and REMAND for resentencing.

I

A

On December 22, 2022, Jesus Soto Parra, an American citizen, sought to enter the United States at the port of entry in Presidio, Texas. Soto Parra attempted to enter Mexico a short time before, but Mexican officials turned him back due to an issue with his vehicle registration.

On his return, Soto Parra drove past the initial Customs and Border Protection (CBP) officer, but after the officer "yelled at him to stop," "hit the back of [his] truck," and "motioned for him to come back," Soto Parra reversed his vehicle to speak with the officer. In response to the officer's questions, Soto Parra denied having any weapons, ammunition, or cash in excess of $10,000. The officer referred Soto Parra to "secondary for further inspection," where Soto Parra was asked the same questions, and this time he responded that he had a weapon in the vehicle. Officers detained Soto Parra, searched his vehicle, and found a firearm, as well as ammunition and body armor. During his post-arrest interview, Soto Parra initially denied knowing whether transporting a firearm into Mexico was illegal, but he then stated that he assumed it was. Later in the interview, Soto Parra agreed with the statement that he "knew [he] couldn't cross with the gun," but he thought safety was "more important than worst case scenario." Soto Parra also initially denied having a criminal background but eventually acknowledged he had a deferred adjudication on his record.

A grand jury charged Soto Parra with one count of exporting a pistol from the United States without authorization. See 18 U.S.C. § 554(a). He pleaded not guilty, proceeded to a jury trial, and was found guilty.

B

On May 8, 2023, the United States Probation Office (the USPO) prepared a Presentence Investigation Report (PSR), applying the 2021 United States Sentencing Guidelines Manual. The USPO obtained information relating to the charged offense from the indictment, an investigative report from federal law enforcement, and Soto Parra's trial. The PSR reflected a base offense level of 14 under U.S.S.G. § 2M5.2(a)(2), the applicable Guideline for Soto Parra's 18 U.S.C. § 554(a) offense. It added two levels under U.S.S.G. § 3C1.1 because Soto Parra "obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation" into his alleged offense. The PSR noted the enhancement was appropriate because (1) Soto Parra "lied" to the initial CBP officer about whether he had a firearm; (2) during his post-arrest interview, Soto Parra initially denied knowing whether it was illegal to transport a firearm into Mexico; and (3) Soto Parra initially denied having a criminal-history background. Based on a criminal-history category of II and an offense level of 16, the resulting Guidelines range was 24 to 30 months.

Soto Parra objected to "¶ 45, 'Adjustment for Obstruction of Justice' and the 2 points added to the offense level." He contended that the correct offense level was 14, the correct criminal-history category was I, and the correct Guidelines range was 15 to 21 months. The USPO submitted an addendum to the PSR on June 8, 2023, addressing Soto Parra's objections and maintaining that the § 3C1.1 enhancement was warranted for the reasons provided in the PSR.

In a sentencing memorandum, the government contended the § 3C1.1 enhancement was proper because evidence elicited at trial established that Soto Parra had been deceptive throughout the investigation. In the alternative, the government requested an upward variance "in the range of 24-30 months" if the district court sustained Soto Parra's objections.

C

At sentencing, Soto Parra orally objected to the § 3C1.1 adjustment. He argued that the enhancement was unwarranted because it was based on (i) the officer's having to get Soto Parra's attention to back the vehicle up for inspection, and (ii) Soto Parra's initially indicating that he did not have a weapon but then admitting in the secondary inspection area that he did. After hearing argument from both sides, the district court overruled the objection in light of "the testimony at trial, the report, the objection by Defense, the response by the Government and the U.S. probation officer."

After overruling Soto Parra's objections, the district court adopted the PSR. In response to Soto Parra's inquiry about whether the government intended to abandon its motion for a variance, the district court stated, "I haven't seen that." The proceedings paused, and the district court then stated, "We'll talk about the variance in a minute." The district court determined the Guidelines range of 24 to 30 months, and Soto Parra requested a Guidelines sentence. Because the district court overruled Soto Parra's objections, the government stated it was no longer "asking for a variance above the guidelines as currently calculated." After the government detailed why it thought the range of 24 to 30 months was appropriate, the district court stated:

The Court, though tempted to vary upwardly — ... does not depart from the recommended sentence. I'll respectfully deny the request for variance by the Government. Though the Court is tempted to vary upward, I will not. I do believe that even had I sustained ... one or more objections, I still think we're in the right guideline range, 24 to 30 months.

Deciding not to "depart from the recommended sentence" and finding the Guidelines range "fair and reasonable," the district court sentenced Soto Parra to 30 months' imprisonment.

D

On November 1, 2023, Amendment 821 to the Guidelines took effect, and it was made retroactive by Amendment 825. The PSR, which was prepared prior to Amendment 821, recommended adding two points to Soto Parra's criminal history under § 4A1.1(d), but Amendment 821 made clear that those points could not be added when calculating his criminal history. On February 26, 2024, the district court granted Soto Parra's motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). After subtracting those points, Soto Parra had only one criminal-history point remaining, which shifted his criminal-history category from II to I. An offense level of 16 and a criminal-history category of I resulted in an amended Guidelines range of 21 to 27 months. The district court then reduced Soto Parra's sentence from 30 months to 27 months. The district court noted the "reduced sentence [wa]s within the amended guideline range."

II

The parties disagree on the applicable standard of review. Soto Parra contends he preserved the error he raises on appeal, making de novo review proper. The government contends the error Soto Parra raised on appeal is not the same error he raised before the district court, making plain-error review proper. Because the applicable standard of review is not outcome determinative, we assume without deciding that plain error—the more stringent standard —applies. See, e.g., Wallace v. Mississippi, 43 F.4th 482, 495-96 (5th Cir. 2022) (examining the issue on appeal while assuming without deciding that plain-error review applied); United States v. Pena, 720 F.3d 561, 573 (5th Cir. 2013) (same).

Under plain-error review, we must determine "whether the district court (1) committed an 'error,' (2) that is 'plain,' and (3) that affects 'substantial rights.'" United States v. Pittsinger, 874 F.3d 446, 451 (5th Cir. 2017) (quoting United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004)). If so, then "we have discretion to correct the error 'only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.'" United States v. Malmquist, 92 F.4th 555, 562 (5th Cir. 2024) (quoting United States v. Williams, 821 F.3d 656, 657 (5th Cir. 2016)). "The defendant has 'the burden of establishing entitlement to relief for plain error,'" which means he must "establish[] each of the four requirements for plain-error relief." Greer v. United States, 593 U.S. 503, 508, 141 S.Ct. 2090, 210 L.Ed.2d 121 (2021) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)).

"The plain error rule is not a run-of-the-mill remedy." United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980). Plain-error review is "very limited," United States v. Phipps, 319 F.3d 177, 189 (5th Cir. 2003), and fact-intensive, United States v. Todd, 735 F.2d 146, 149-50 (5th Cir. 1984). Reversal for plain error is warranted only in "exceptional circumstances." United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936).

III

A

Courts err when they "[d]eviat[e] from a legal rule."¹ United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Soto Parra contends that the district court erred in applying § 3C1.1, arguing that the application notes demonstrate the inapplicability of the enhancement. The government disagrees.

Section 3C1.1 of the Guidelines reads:

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related

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