USA v. Ruben De Leon, Jr.

Filing 920101230

Opinion

Case: 10-40111 Document: 00511336541 Page: 1 Date Filed: 12/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40111 S u m m a r y Calendar December 30, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. R U B E N DE LEON, JR., D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 5:04-CR-317-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* R u b e n De Leon, Jr., appeals the 97-month prison sentence imposed for p o s s e s s io n with intent to distribute more than 100 kilograms of marijuana. Although he pleaded guilty in 2004, De Leon was not sentenced until 2009 b e c a u s e he failed to appear for his sentencing hearing and remained a fugitive fo r several years. He argues that the Government breached the plea agreement b y failing to recommend a reduction for acceptance of responsibility pursuant to U .S .S .G . § 3E1.1.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Case: 10-40111 Document: 00511336541 Page: 2 Date Filed: 12/30/2010 No. 10-40111 W e review for plain error his "forfeited claim . . . that the Government fa ile d to meet its obligations under a plea agreement." Puckett v. United States, 1 2 9 S. Ct. 1423, 1428 (2009). To show plain error, De Leon must show a forfeited e r r o r that is clear or obvious and that affects his substantial rights. Id. at 1429. If he makes such a showing, this court has the discretion to correct the error but o n ly if it seriously affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s . Id. I t is not clear or obvious that the Government breached the plea a g r e e m e n t given that the agreement states that "[i]f the defendant should fail in any way to fulfill completely all of the obligations under this plea agreement, . . . [t]he United States will be permitted to recommend to the Court any s e n te n c e it considers appropriate, up to and including the maximum possible s e n te n c e ." In addition, the district court stated at the sentencing hearing that it would not grant De Leon a reduction for acceptance of responsibility because, r a t h e r than taking responsibility for his crime, he failed to appear for his s e n te n c in g hearing and remained a fugitive for nearly five years. This was c o n s is t e n t with the Guidelines commentary, especially given that the district c o u r t applied an offense level enhancement for obstruction of justice pursuant t o U.S.S.G. § 3C1.1. See U.S.S.G. § 3E1.1, cmt. nn.3-4. A F F IR M E D .

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