### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 10364

UNITED STATES OF AMERICA , Plaintiff

–

Appellee , versus JUAN MORALES

- RODRIGUEZ , Defendant

– Appellant

.

Appeal from the United States District Court for the Northern District of Texas

Before JONES , SMITH , and COSTA , Circuit Judges

. PER CURIAM :
Juan Morales

- Rodriguez pleaded guilty of illegally reent ering the United States after removal. He appeals his sentence, claiming that the government impermissibly withheld an additional offense

- level reduction for acceptance of responsibility. We affirm.
I. Morales

- Rodriguez was sentenced under the 2012 g uidelines, which pro

vide for a two

- level reduction for acceptance of responsibility and an addi tional

one - level reduction if , inter ali a , the government files a motion “ stating that United States Court of Appeals Fifth Circuit 

### FILED June 9, 2015 Lyle W. Cayce Clerk Case: 13-10364 Document: 00513072336 Page: 1 Date Filed: 06/09/2015No. 13

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2 the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources effi

ciently .” U.S. S ENTENCING G UIDELINES M ANUAL § 3E1.1 (2012)

. The p resen tence i nvestigation r eport (“PSR”) stated that although Morales

- Rodriguez qual ified for the two

- level reduction , the government would not request the addi tional one

- level reduction

. Accordingly, the PSR subtracted two levels for acceptance of responsibility. At the time of sentencing, our caselaw established that the government could withhold the additional reduction based on a defendant’s decision not to waive his right to appeal

. 1 The plea agreement contained a waiver

- of

- appeal provision that was crossed out and initialed by Morales

- Rodriguez and his lawyer. Nothing else in t he record indicates whether the government withheld the additional reduction because Morales

- Rodriguez preserved his right to appeal or for some other reason. Morales

- Rodriguez did not object to the PSR and filed a statement adopt

ing it. The g uideline range was 51

– 63 months as calculated in the PSR and would have been 46

– 57 months with the additional reduction. The court fol

lowed the PSR and sentenced Morales

- Rodriguez to 63 months. While this appeal was pending, the Sentencing Commission amended the g uidelines commentary to explain that “[t] he government should not with

hold [a motion for the additional reduction] based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to

1 United States v. Newson , 515 F.3d 374, 378 (5th Cir. 2008) , abrogated by United States v. Villegas Palacios , 756 F.3d 325 (5th Cir. 2014) (en banc) (per curiam). Case: 13-10364 Document: 00513072336 Page: 2 Date Filed: 06/09/2015No. 13

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3 appeal. ” 2 We held that our previous rule had been abrogated in light of that amendment and that the new rule applies to cases on appeal at the time of the amendment

. Villegas Palacios , 756 F.3d at 325 & n.1. Morales

- Rodriguez asks us to vacate and remand for resenten cing because, in his view, the government withheld the additional reduction based on his decision not to waive appeal.
II. We review for plain error because Morales

- Rodriguez did not raise this issue in the district court. See Puckett v. United States , 556 U .S. 129, 135 (2009)

. 3 “ First, there must be a n error or defect

— some sort of ‘[d]eviation from a legal rule’

— that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear

or obvious, rather than subject to reasonable dispute. ” 4 “[W] here the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate con sid er a tion. ” Johnson v. United States , 520 U.S. 461, 468 (1997). “ Third, the error

m ust have affected the appellant’ s substantial rights, which in the ordinary

case mea ns he must demonstrate that it ‘ affected the outcome of t he district

2 Sentencing Guidelines for United States Courts, 78 Fed. Reg. 26,425 , 26,431 (May 9, 2013).

3 The government urges that Morales

- Rodriguez’s sente nce resulted from invited error because he did not object, did not ask the government to put into the record its reason for with holding the additional reduction, and filed a statement adopting the PSR. But we have rejected the theory that invited

- error review applies merely because a defendant fails to object and states t hat his PSR is correct. United States v. Duque

- Hernandez , 227 F. App’x 326, 327 n.1 (5th Cir. 2007) (per curiam)

. Morales

- Rodriguez says plain

- error review does not apply, because the Sentencing Commission had not yet amended the g uideline com men tary at the time of his sentencing , so he lacked the o pportunity to raise the issue. That notion is foreclosed by United States v. Garcia

- Carrillo , 749 F.3d 376, 378 (5th Cir.) (per curiam) , cert. denied , 135 S. Ct. 676 (2014)

. 4 Puckett , 556 U.S. at 135 (alteration in original) (citation omitted) (quoting United States v. Olano , 507 U.S. 725, 732

– 33 (1993) ). Case: 13-10364 Document: 00513072336 Page: 3 Date Filed: 06/09/2015No. 13

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4 court proceedings.’” Puckett , 556 U.S. a t 135 (quoting Olano , 507 U.S. at 734).

“ Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error

— discretion which ought to be exercised

o nly if the error ‘ seriously affect[s] the fairness, i ntegrity or public reput ation of judicial proceedings. ’” 5 “ Meeting all four prongs is difficult, ‘ as it should be. ’ ” 6 Morales

- Rodriguez postulates that that the government withheld the additional reduction because he preserved his right to appeal. H e emphasizes that the waiver provision was crossed out , nothing suggests the government expended any resources p reparing for trial, and it was common practice for the U.S. Attorney’s Office for the Northern District of Texas to with hold the addi

tional redu ction for that reason. We need not decide that ques tion , because even if there was an error, it wa s not clear or obvious. We resolved that in United States v. Henneberger , 592 F. App’x 233 (5th Cir. 2014) (per curiam). The re the defendant alleged that the government had improperly withheld the additional reduction for reasons not identified in the g uidelines , although he apparently did not speculate as to what the government’s reasons were ; the record was “silent” on that matter

. See id. at 236

– 37. We held that any error was not clear or obvious, explaining that , “[b] ecause we have no evi dence concerning the government’ s motives for withholding the motion, an erroneous failure to conclude that the government acted improperly would be anything but clear and indisputable .” Id. The same is true here. Unlike the defendant in Henne berger , Morales

Rodriguez had a written plea agreement with the waiver provision crossed out,

5 Id. (alteration in original) (quoting Olano , 507 U.S. at 736 ) (internal quotation marks omitted).

6 Id. (quoting United States v. Dominguez Benitez , 542 U.S. 74, 83 n.9 (2004)). Case: 13-10364 Document: 00513072336 Page: 4 Date Filed: 06/09/2015No. 13

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5 but that it is a distinction without a difference. The Henne berger defendant also preserved his right to appeal, and the fact that Morales

- Rodriguez did so in writing has little bearing on whether the government withheld the addi

tional reduction in response. It certainly does not make any error clear or obvious, 7 so Morales

- Rodriguez has not shown plain error. AFFIRMED.

7 Cf. United States v. Claiborne , 676 F.3d 434 , 438 (5th Cir. 2012) (per curiam) (“ Q ues tions of fact capable of resolution by the district court upon proper objection at sentencing can never constitu te plain error.” (alteration omitted) ( quoting United States v. Lopez , 923 F.2d 47, 50 (5th Cir. 1991) (per curiam)) (int ernal quotation marks omitted)). Case: 13-10364 Document: 00513072336 Page: 5 Date Filed: 06/09/2015