USA v. Luis Azuara-Ahumada
UNPUBLISHED OPINION FILED. [16-40437 Affirmed] Judge: RHB, Judge: CH, Judge: SAH. Mandate pull date is 01/20/2017 for Appellant Luis Angel Azuara-Ahumada [16-40437]
Date Filed: 12/30/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
December 30, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA,
Plaintiff - Appellee
LUIS ANGEL AZUARA-AHUMADA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-999-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Luis Angel Azuara-Ahumada pleaded guilty to possessing, with the
intent to distribute, 3.125 kilograms of cocaine, in violation of 21 U.S.C. § 841,
and was sentenced to 37-months’ imprisonment. He challenges the district
court’s denial of a minor-role adjustment, pursuant to Guideline § 3B1.2, by
contending for the first time on appeal that the court denied the adjustment
pursuant to its fixed policy of denying it to all South Texas drug couriers.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
Date Filed: 12/30/2016
Because Azuara did not raise this issue in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Azuara must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
Azuara has not demonstrated the court committed the requisite clear or
obvious error. When its remarks are reviewed as a whole, it is not clear or
obvious that the court has a set policy of denying the § 3B1.2 adjustment to all
drug couriers. To the contrary, the court invited argument in favor of the
reduction, paused the proceedings to consider the newly amended commentary
to the Guideline, noted Azuara possessed a dangerous drug in a large quantity,
and found he played a significant role in the instant offense. The court also
adopted the presentence investigation report, which listed the specifics of the
offense, including: the vehicle used in the offense was registered to Azuara; he
went on a scouting trip to Houston with others to familiarize himself with area
highways; and he was entrusted with large quantities of drugs on multiple
occasions. In short it is not clear or obvious that the court denied the § 3B1.2
adjustment without making an individualized assessment of Azuara’s
circumstances. See Puckett, 556 U.S. at 135.
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