### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-51189

UNITED STATES OF AMERICA, Plaintiff–Appellee
v. TROY DARNELL CLAIBORNE, Defendant–Appellant

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

Before JONES, Chief Judge, PRADO and SOUTHWICK, Circuit Judges. PER CURIAM: This cas e deals with the district court’s application of the obstruction of justice enhancement and no n - a p plication of the minor role reduction to Defendant–

Ap p ellant Troy Claiborne’s sentence for aiding and abetting the possession with intent to distribute crack cocaine. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND On July 22, 2010, an Odessa Police Department narcotics detective received information from a confidential i n f o rmant (“CI”) that a black male, know n a s “ T win,” would be selling two ounces of crack to the CI in the H.E.B. parking lot in Odessa, Texas that night. Accordi n g t o t he CI, Twin would be driving a white Impala w i t h C a l ifornia licenses plates. Based on this tip, U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

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de t e c t i ves set up surveillance in the parking lot and observed a white Impala matching the CI’s description enter and park in the lot. Two black men exited the car and “were l o o k i n g around suspiciously as if they were looking for someone.” Detec t i v es approached the men, who identified themselves as Troy Claiborne and Levale Weldon. As they wer e a ll walking back to the car, a detective noticed a plastic bag underneath the car on the driver’s s i d e just in front of the driver’s-side rear tire. The bag contained eight in divi dually-wrapped packages of crack. Weldon, who owned the Impala, consented to a search of it, and detect i v e s f

o und white residue, which tested positive for cocaine, on the floorboards of both the driver’s and the passenger’s side. Also during the search, three cell phones were recovered—a Samsung, a Blackberry, and a Motorola. Weldon claimed the Samsung phone was his, and Claiborne claimed the Motorola. Claiborne initially denied that the Blackberry

was his, but he later claimed the phone. The Blackberry contai n e d t e x t
messages that a detectiv e b e l i e ved involved drug transactions. Detectives discovered that the CI had called the M o t o r o la phone when setting up the purchase. At the time of their arrest, Weldon had $580 on him, and Claiborne had $1,232. Claiborne claimed that he was unemployed but that he made money gambling and playing pool. Detectives showed the CI photo g r a phs of Weldon and Claiborne, and the CI identified Weldon as “Twin.” The CI did not, however, recognize Claiborne. After the arrests, Claiborne and Weldon were placed in a police car. While seated in the backseat, Weldon unbuckled both of their seatbelts. Weldon then started in on a conversation with Claiborne about escaping, a s k ing “Is your window all the way down like mine?”; “Did he already seat belt you?”; and “Can
you open it up from your door?

. . . [’C]uz its gonna take him long e r t o get to
your side.” Claiborne’s only response to these questions was wh e n W e l d on asked, “You hear me?,” Cl a ib o r n e replied, “Um-hmm.” Weldon went on to

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explain, “He’s [the detective] gonna try to shut that door

. . . pursuing a chase on you . . . cuz one of us is gonna get away . . . I just can’t live no more . . . .” After pleading guilty without a plea agreement to aiding and abetting the possession with intent to distribute five grams or more of crack, see 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. § 2, a Prese n t e nce Investigation R e p o rt (“PSR”) was prepared for Claiborne. The probation officer found that Claiborne had attempted to escape from the police car and r e c o m mended enhancing the offense level for obstructing justice. She calculated a total offense level of 27—base level of 28, see U.S. Sentenci n g G u i d elines Manual §§ 2D1.1(c)(6) and (a)(5) (2010), a two-level increase for obstruction of justice, see id. at § 3C1.1, and a three-level decrease for acceptance of responsibility, see id. at § 3E1.1. When combined with a criminal history catego ry of I, Claiborne’s Guidelines range sentence was 70 to 87 months imprisonment. See id. at ch. 5, pt. A. Claiborne filed objections to th e P S R , arguing, inter alia , that he should have received a downward adjustment to his offense level, pursuant to § 3B1.2, because he was a m i n or participant. The district court determined that Claiborne had not met his burden of establishing that he was substantially less culpable than Weldon. The district court imposed a 78-month prison sentence, in the middle of the Guidelines range, stating , “ I ’ m not departing from the recommended sentence.” Claiborne timely appealed. II. STANDARD OF REVIEW Issues related to a defendant’s sentence are reviewed for reasonableness. United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). This reasonableness determination takes the form of abuse of discretion review. Id

. There is a two-step process for this review: “first[,] ensure that the district court committed no significant procedural e r ror”; and second, “consider[] the sub s t a n t ive reasonableness of the sentence imposed.” Id

. (internal quotation

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marks omitted). In g o i n g t hrough this two-step process, “a district court’s interpretation or application of the Sentencing Guidelines is reviewed de novo, and its factual fin d i n gs are reviewed for clear error.” Id

. (internal quotation marks o m itted). “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” United States v. Villanueva , 408 F.3d 193, 203 (5th Cir. 2005). III. DISCUSSION A. Non-Application of the Minor Role Reduction A district court may decrease a defendant’s offense level by two levels if it finds that the defend a n t w a s a minor participant in the offense. U.S.S.G. § 3B1.2(b). The minor role reduction applies to a defendant “who is less culpable than most other participants, but whose role could not be described as minimal.” Id

. at § 3B1.2, cmt. n.5. This reduc t i o n applies only “when a defendant is substantially less culpable than the average participant.” Villanueva , 408 F.3d at 204 (citation and internal quotation marks omitted). “It is not enough that

a defendant does less than other participants; in order to qu a l i f y a s a minor participant, a defendant must have been peripheral to the advancement of the illicit activity.” Id. (internal quotation marks). “A defendant has the burden of showing that he is entitled to the downward adjustment.” United S t a t es v. Garcia , 242 F.3d 593, 597 (5th Cir. 200 1). Claiborne argues that he acted as a minor participant because (1) the CI implicated only Weldon, (2) Weldon was driving the Impala on the day of their arrest and the car belonged t o h i m , a n d (3) the cocaine was found near the d r i v e r ’ s r e a r t i r e , l e a d i n g t o t h e c o n c l u s i o n t h a t W e l d o n

— n o t Claiborne—possessed the drugs prior to putting them under the tire. The facts show that Claiborne admitted that he possessed the drugs with the intent to d i s t r ibute them “along with Mr. Weldon.” Both Claiborne and Weldon, upon arriving at th e H

. E.B. parking lot, exited the Impala and looked around

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“suspiciously as if they were looking for someone.” These acti o n s l e a d t o the

conc l u s i o n that Claiborne was involved in the sale to the CI and not a mere bystander or passenger. Additionally, detectives found cocaine residue on both the driver’s and the passenger’s floorboards. Claiborne’s Blackberry contained text messages that a detective believed involved drug tran s a c t i o ns, and at the time of his arrest, Claiborne had $1,232 in cash—despite his claim that he was unemploye d)

. Finally, the CI called the Motorola cell phone, which Claiborne claimed was his, to arrange the crack purchase. Although Claiborne might have been less cul p ab le than Weldon, based on the foregoing facts, Claiborne’s participation was not peripheral to the advancement of the illicit activity. See Villanueva , 408 F.3d at 204. Because Claiborne was not substantially l e s s culpable than the average participant, the district court did not clearly err when it denied him the minor role reduction under § 3B1.2(b). See id. B. Application of the Obstruction of Justice Enhancement A defendant i s s u bject to a two-level increase in his offense level if he “willfully obstructed or impeded, or attempted to obstruct o r impede, the admin i stration of justice.” U.S.S.G. § 3C1.1. This adjustment is warranted where a defendant escaped or attempted to escape from custody. Id

. at § 3C1.1, cmt. n.4(E). Claiborne argues that the PSR demonstrates t h a t Weldon, not Claiborne, attempted to escape. He notes that Weldon unbuckled their seatbelts and that Claiborne did not assist, speak to, or communicate with Weldon, except when Claiborne replied that he had heard Weldon’s plan to escape. Claiborne, however, failed to o bject to the application of the two-level enhancement for obstruction of justice at the district court. This failure to object below forecloses our review becaus e “ [a] district court’s determination that a defendant has obstructed justice is a factual finding,” United States v. Cisneros , 112 F.3d 1272, 1279 (5th Cir. 1997), and “[q]uestions of fact capable of resolution by the district court upon proper objection at sentencing can never co n s t i tute

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plain error,” United States v. Lopez , 923 F.2d 47, 50 (5th Cir. 1991) (per curiam) (citing United States v. Mourning , 914 F.2d 699, 703 (5th Cir. 199 0)). IV. CONCLUSION For the foregoing reasons, we AFFIRM Claiborne’s sentence.

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EDITH H. JONES, Chief Judge, concurring: I concur in t h e p e r curiam opinion, which faithfully follows our twenty
y ear old precedent establishing that findings of fact by a district court are n o t subject to reversal for "plain error." United States v. Lopez , 923 F.2d 47 (5th Cir. 1991), cert. denied , 500 U.S. 924, 111 S. C t

. 2 0 3 2 ( 1 9 91). But I am also constrained to respond to Judge Prado's challeng e t o t h i s precedent. For the sake of brevity, I do so in short points. First, plain error is by definition error s o c l e ar and obvious that the district court should not ha v e e r r e d in the first place. United States v. Olano , 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993). As the factfinder in sentencing, the district court is not bound by the rules of evidence, and its findings are shielded by the clear error standard even when an appellant preserves error for appeal. Because so many sentencing findings amount to judgment calls, based in part on the trial court's intimate knowledge of local p r o b a t i o n and law enforcement practice s , it seems nearly inconceivable that we could deem their factual findings "plainly erroneous" under the Olano definiti o n
. F u rther, to allow appellate second-guessing when no factual error was point e d out below erodes the distinction between plain error and clear error. Second, restricting plain error review to issues of law is hardly unfair to defendants. Under curren t s e ntencing procedures, each defendant and his attorney has ample advance access to the PSR. They can respond directly to the facts identified as pertinent in the PSR, subject, of course, to rebuttal by the probation officer and the government. They are well aware of the district court's fact finding duties and have the opportunity to prepare and persuade the district court of their view of the facts. W e ought to assume that counsel will have conferred with the client about the facts concerning sentencing. It seems highly unlikely that a competent counsel will fail to timely raise a factual objection to an enhancement in the district court. Case: 10-51189 Document: 00511803809 Page: 7 Date Filed: 03/28/2012No. 10-51189

Third, this court ha s , far more often than not, followed Lopez

. See, e.g. , United States v. Conn , 657 F.3d 280, 284 (5th Cir. 2011) (citing Lopez , 923 F.2d at 50), and legions of unpublished Fifth Circuit decisions. That a few opinions 1 of this court fail to follow Lopez in the past twenty years says less about our establishe d c o u r t precedent than it does about the potential for error in the increasingly complex law of federal sentencing. Fourth, this case illustr a t e s w h y we should not be in the business of reviewing factfindings on appeal. The evidence relating to the foiled attempt to
escape from the patrol car is a videotape in which most of the action, admittedly, is committed by Claiborne's co-defendant. The sequence of events was equally obvious to Claib o r n e and his counsel as to the trial court, yet the defendant failed to point out his alleged passivity to the district court. From what superior vantage point can we say there is "no e v i d ence" to support the enhancement, when in fact Claiborne's seatbelt was found undone by the officers, and on the videotape he responds "um-hmm" to an escape query from the other defendant? The district court might have looked at this video more carefully if Claiborne had raised the issue; had it done so, we would have no real basis to d e c l are a fact findin g e i t her way — supporting or rejecting an obstruction enhancement

— clear error. To apply "plain error" here would amount to our simply replacing the factfinder's function with a de novo interpretation of the evidence. Finally, the fulcrum of the desire to e m p l o y plain error review to sentencing fact issues is the potential impact on the defendant's sentence if the

The majo rit y of the rec ent unpub l i s h e d o p i nions fol low Lope z
. See Uni ted States v. 1 Agui rre , No. 10- 51167, 2012 WL 11046 *2 (5t h Cir. Jan

. 4, 2012) ; U nitedState s v. M

ar quez Mur il lo , No. 11-5 0281, 2011 WL 6934419 *1 (5t h Cir. De c. 30, 2011) ; Uni ted States v. Casti ll o , 445 Fed. App x. 784, 784- 85 (5t h Cir. 2011) ; Uni ted States v. Sal iz ar -Pro , 442 Fed. App x. 908, 910 (5t h Cir. 2011) ; Uni ted States v. Mi ll er , 450 Fed. App x. 336, 338- 39 (5t h Cir. 2011) ; Uni ted States v. Candr ic k , 435 Fed. App x. 404, 406 (5t h Cir. 2011) ; Uni ted States v. Zam ora -M el goza , 396 Fed. App x. 121, 122 (5t h Cir. 2010) ; Uni ted States v. Me ndoz a , 395 Fed. App x. 144, 145 (5t h Cir

. 2010)

. 8 Case: 10-51189 Document: 00511803809 Page: 8 Date Filed: 03/28/2012No. 10-51189

guidelines are misapplied. But the defendant's term of imprisonment is not the only consideration relevant to the standard of review. I have already explained why appellate courts are singularly ill

- s u i t e d to reviewing unobjected-to facts pertinent to sentencing. It is also important that the public, represented by the government, be apprised of potential sentencing defects a t t h e t r ial level, in order to save re s o u r c es and utilize law enforcement capabilities efficiently. E v e r y resentencing compelled following plain error review imposes costs a n d d a n g e r s w hen a defendant is remitted from prison back (perhaps hundreds of miles) to the sentencing court. Arguably, district courts spend more time trying to foresee and prevent reversal based on the errors not pointed out to them. In
any event, they are blindsided and their schedules adv e r s e l y affected by the disorderliness of allowing criminal defendants to prevail on issues raised for the first time on appeal. The balance of hardships is shared among the defendant, the public and the courts, it seems to me, when the proper sentencing objections are not raised in the trial court. Because I contend that p l a i n e r ror review should not be applied to this purely factual determination of obstruc t i o n o f j ustice, I need only add that I would be strongly disinclined to find plain error if we did use t h a t s t andard.

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EDWARD C. PRADO, Circuit Judge, concurring: I write separately to discuss the court’s review (or rather, the lack thereof) of Claiborne’s claim that the district court erred in applying the obstruction of justice enhancement under U.S.S.G. § 3C1.1. Generally , f

a i lure to object to an error at the district court limits this court’s r e v i e w to plain error. United States v. Villegas , 404 F.3d 355, 358 (5th Cir. 2005) (per curiam); see also Fed. R. Crim. P. 52(b). This standard requires that the defendant show (1) error, (2) that is clear or obvious, (3) and that affects his substantial rights; (4) if the elements are satisfied, this court may exercise its discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett v. United States , 556 U.S. 129, 135 (2009). In this case, the court declines to review Claiborne’s claimed error

as to the application of the obstruction of justice enhancement based on the rule fro m U n i t e d States v. Lopez , 923 F.2d 47 (5th Cir. 1991) (per curiam), that “‘[q]uestions of fact capable of resolution b y the district court upon proper 1

In her conc urr ence , Chief Judge Jones em ph a s i z e s the sp ecia l role the se nten cing 1

cour t plays in find ing fac ts , a role wh ich I do not chall enge. It sho uld be note d, how ever, that the is sue of whe thert he det erm inati on that§ 3C1.1’s requir em ents are metis not s o clear ly
a ques tio n of fac t. The cour t cor rec tly, bas ed on this cir cuit ’s earl ies t- cas e cont rols rule , hold s that “‘[ a] dis tri ct cour t’s det erm inati on that a def enda nt has obs tru cte d just ice is a fac tual find ing.’ ” Per Curiam Op ., sup ra , at 5 (quo ting Uni ted States v. Cis ner os , 112 F.3d 1272, 1279 (5t h Cir. 1997) ); cf

. Uni ted States v. Pade n , 908 F.2d 1229, 1236 (5t h Cir. 1990) (“ [T] he dis tri ct cour t’s dete rm inati on [t hat a tw o-l evel enhanc em ent und er § 3C1.1 ] is s ubjectto the ‘cl earl y err oneo us’ st andar d of revie w. ”)

. Ho we ver, ther e is an intr a- and an i nter -c irc uit sp lit as to wh ethe r a § 3C1.1 det erm inati on is to be revie we d as a ques tio n of fac t or as a ques tio n of law

. Com pa re Cis ner os , 112 F.3d at 1279 (que st ion of fac t) wi th Uni ted States v. Brow n , 470 F.3d 1091, 1093–94 (5t h Cir. 2006) (que st ion of law : “For an obs tru c t i o n - o f

- just ice enhanc em ent, th e di st ric t cour t’s fac tual find ings—its find ings as to wh at act s we re per for me d— are revie we d only for clea r err or.
. . . A rulin g that thos e find ings per mi t an obs tru cti on- of- just ice enhanc em ent is a qu es tio n o f law , revie we d de nov o .” ); com pa re Uni ted Sta tes v. Ma bie , 663 F.3d 322, 334 (8t h Cir. 2011) (d ete rm in atio n that the § 3C1.1 enhanc em ent app lies is a ques tio n of law/r eview ed de novo) , Uni ted States v. Do e , 661 F.3d 550, 565 ( 1 1th Cir. 2011) (s ame ), Uni ted States v. Tay lor , 637 F.3d 812, 817 (7t h Cir. 2011) ; Uni ted States v. Cordo va Bara jas , 360 F.3d 1037, 1043 (9t h Cir. 2004) , Uni ted States v. Vi ll ar ma n-O vi edo , 325 F.3d 1, 16 (1s t Cir. 2003) , Uni ted States v. Brow n , 321 F.3d 347, 351 (2d Cir. 2003) , and Uni ted States
v. Jones , 308 F.3d 425, 427 (4t h Cir. 2002) , wi th Uni ted States v. Jac kson -Ra ndol ph , 282 F.3d 369, 390 (6t h Cir. 2002) (que st ion of fac t revie we d for clea r err or) ; see also Un i te d States v. He nry , 557 F.3d 642, 645 (r eview ed for due def ere nce) ; Uni ted States v. Bedf ord , 4 4 6 F .3d Case: 10-51189 Document: 00511803809 Page: 10 Date Filed: 03/28/2012No. 10-51189

objection at s e n t e ncing can never constitute plain error.’” Per Curiam Op.,
supra , at 5–6 (quoting Lopez , 923 F.2d at 50) (footnote added). Yet, we have not relied exclusively on this rule in reviewing unobjected-to applicati o ns of Guidelines enhancements. In United States v. P a t t an, 931 F.2d 1035 (5th Cir. 1991), this court

a d d r e ssed, in the context of the district court’s enhancement under § 3C 1

. 1 , “whether, under the plain error standard, [it] should evaluate the adjustments based solely on the factual findings actually made by the trial judge or whether [it] should consider the entire record when [it] evaluate[s] the adjustments.” Id

. at 1042–43. It resolved that, “[g]iven the minimal nature of our review, we find it appropriate to consider all of the evidence in the record supporting the

a djustments, and will uphold the adjustments if the record as a w h o l e demonstrates that the adjustments did not r e s ult in a miscarriage of justice.” Id

. at 1043. Plain error has previously been described by this court as “error so obvious that our failure to notice it would seriously affect the fairness, integrity,

or public reputation of the judicial proceedings and result in a miscarriage of justice.” United States v. Peltier , 505 F.3d 3 8 9 , 3 9 1 n .3 (5th Cir. 2007) (alteration and internal quotation marks omitted). My reading of Pattan is that unobjected

- t o errors in the application of the Guidelines are to be reviewed under the typical plain error standard of Rule 52(b). Neither the rule from Lopez nor the p l a i n error review suggested in Pattan , however, has been consistently adhered to by our court; in fact, this court has more often applied plain error analysis to review of an unobjected-to

1320, 132 4 ( 10th Cir. 200 6) (m ixed ques tio n o f lawandfactthat is review ed forc learer ror). As t h e r e i s sub st antia l autho rit y that § 3C1.1 det erm inati ons are, at the very leas t, mi xed qu e s t i o n o f law and fac t that are to be revie we d de novo, Chief Judge Jones overs tat es the inte rf ere nce wi th dis tri ct cour ts that our cour t wo uld have by re view ing thes e type s of ques tio ns. 11 Case: 10-51189 Document: 00511803809 Page: 11 Date Filed: 03/28/2012No. 10-51189

enhancement under § 3C1.1. Compare United States v. Akinosho , 285 F. App’x 2 128, 130 (5th Cir. 2008) (applying Lopez) with United States v. Stevenson , 97 F. App’x 468, 470 (5th Cir. 2004) (conducting a typical plai n e r r o r a nalysis) and United States v. Huerta , 182 F.3d 361, 366 (5th Cir. 1999) (same)

. Where, as here, two lines of precedent conflict, our rule is to fo l l o w t h e e arlier opinion. U n i ted States v. Wheeler , 322 F.3d 823, 828 n.1 (5th Cir. 2003). Therefore, because Lopez predates Pattan , the court is correct to apply Lopez and foreclose review. Nonetheless, I believe the Lopez rule to be inferior and think that our review of unobjected-to enhancement under the Guidelines ought to be for plain

error. The Supreme Court has stated that “[a] rigid and undeviating j u d i c ially declared practice under which courts of review would invariably and under all circumstances decl i ne to consider all questions which had not previously been specific a l l y u r ged would be out of harmony with

. . . the rules of fundamental justice.” United States v. Olano , 507 U.S. 725, 732 (1993) (alteration and ellipsis in original) (internal quotation marks omitted). In so doing, it drew on its prior opinion in Hormel v. Helvering , 312 U.S. 552 (1941). Ordinarily an appellate court does not give consideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. This is essential in order that parties

Chief Judge Jones st ates in her conc urr ence that “[ t] he m aj o r i t y of the rec ent 2 unpub lis hed opi nions fol low Lope z ,” but she doe s not conf ine her univer se to the sp ecif ic cont ext of the obs t ruc tio n of just ice enhanc em ent unde r § 3C1.1 ; she als o inclu des a hos t of othe r det erm inati ons mad e by dis tri ct judges unde r the Gu ide lines

. See Jones Op ., sup ra , at 2 n.1. I am no t sugges ting thateve ry det erm inati on mad e underthe Gui del ines needs to be revie we d for plai n err or, but ther e is a dis tinc tio n betw een “m inor , det ailed , [and ] inte rs tit ial ques tio n[s ] of sente ncing law ,” wh ich are given “d ue def ere nce, ” Bufor d v. Uni ted States , 532 U. S. 59, 64 (200 1), and “int erp ret ive ques tion [s ]” requ iring app lica tio n of the Gu ide lines suc h
as the enhanc in g a def enda nt’ s se nten ce for obs tru cti ng just ice or mak ing a “d ow nw ard adjus tm ent foraccep tanc e of res pons ibili ty.” See Uni ted States v. McLa ughli n , 378 F.3d35, 38 n .1 (1s t Cir. 200 4); seea ls o U nitedState s v. V

as quez , 389 F.3d65, 73– 75 ( 2d Cir. 200 4).
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may have the opportunity to offer all the ev i d e n c e they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally esse n t i a l in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.
Hormel , 312 U.S. at 556. However, as the Court went on t o s a y , “ [ r ] ules of practice and procedure are devised to promote the ends of justice, not to defeat them.” Id

. at 557. Continued adherence to the L o p e z r u l e does just that. It defeats the ends of justice by eschewing plain error’s balance of the competing

concerns that errors be pressed in the district court before being pursued here and that our rules do not allow for miscarriage s o f j u s t ice. The Lopez rule 3 replaces t h i s nice balance with a rigid rule that insulates from this court’s review misapplication of sentencing enhancements. Moreover, the Lopez rule puts us out of step with our sister circuits, as no other circuit court adheres to the Lopez rule. Each of the other circuit courts has articulated that unobjected-to Guideline enhancements are to be review e d f or plain error. In United States v. Montgomery , 379 F. App’x 527 (6th Cir. 2010),

4 the Sixth Circuit noted, “[s]everal circu i t s have held that ‘questions of fact

Proving plai n err or is no eas y fea t. As this cour t has pr evious ly st ated , “[ t] he burd en 3 of sho wi ng plai n err or is a heavy one. ” Uni ted States v. Andr ew s , 22 F.3d 1328, 1341 (5t h Cir. 1994) (int erna l quot atio n mar ks om itt ed)

. It requ ires err or that is “s o obvious and sub st antia l that fai lure to noti ce and cor rec t it wo uld aff ect the fai rnes s, inte grity or publ ic rep utat ion of judic ial pr oce edi ngs. ” Lopez , 923 F.2d at 50. The “high bar” ere cte d, Uni ted States v. Mo ri n , 627 F.3d 985, 1000 (5t h Cir. 2010) (int erna l quot atio n mar ks om itt ed) , gives def enda nts great ince ntive to rais e err or bef ore the dis tri ct cour t wh ile allow ing this cour t to st ep in and cor rec t thos e s ubs tant ial err ors t hat dem and ame lior atio n. See, e. g. , Uni ted States v. Saha kia n , 446 F. App ’ x 861, 863 (9t h Cir. 2011) ; Uni ted 4 States v. Jum ah , 599 F.3d 799, 811 (7t h Cir. 2010) ; Uni ted States v. Poe , 556 F.3d 1113, 1128 (10t h Cir. 2009) ; Uni ted States v. Ma sse y , 443 F.3d 814, 818 (11t h Cir. 2006) ; Uni ted States v. Vi ll af ane -Ji me nez , 410 F.3d74, 84 n.9 (1s t Cir. 200 5); Uni ted Sta tes v. D ixo n , 360 F.3d845 , 847 (8t h Cir. 2004) ; In r e Se a l ed Case , 349 F.3d 685, 690 (D .C. Cir. 2003) ; Uni ted States v. Brenn an , 326 F.3d 176, 200 (3d Cir. 2003) ; Uni ted States v. Cla rk , 28 F. App ’x 34, 37 (2d Cir. 2001) ; Uni ted States v. Wel ls , 163 F.3d 8 8 9 , 9 0 0 ( 4 t h Cir. 1998) ; Uni ted States v. Bara jas

Nune z , 91 F. 3d 826, 830 ( 6th Cir. 199 6). 13 Case: 10-51189 Document: 00511803809 Page: 13 Date Filed: 03/28/2012No. 10-51189

capable of resolution by the district c o u r t u p o n proper objection at sentencing

can never constitute plain error.’” Id

. at 530 (alteration omitted) (quoting Lopez , 923 F.2d at 50) (citing United States v. Bush , 405 F.3d 909, 922 (10th Cir. 2005); United States v. Elion , 15 F. App’x 14, 16 (1st Cir. 2001); United States v. Alford , 25 F.3d 1041 (4th Cir 1994)). In Montgomery , the court chose not to “go that far” and resolved the case on plain error analysis. Montgomery , 379 F. App’x at 530. Additionally, since Bush , Elion , and Alford , each of these circuits has used the typical p l a i n error review in analyzing unobjected-to enhancements under § 3C1.1. See Uni t e d S t a t e s v. Salazar , 446 F. App’x 110, 112 (10th Cir. 2011); United States v. Shawakha , 410 F. App’x 658, 663–64 (4th Cir

. 2 0 1 1); United States v. Villafane-Jimenez , 410 F.3d 74, 84 n.9 (1st Cir. 2005). It is clear then that the courts that have dabbled with the Lopez rule, including our own, have moved away from it. Finally, this is not merely an esoteric argument about the role of this court in r e v i e w i ng sentencing decisions of the district courts or about the proper balance between competing procedural concerns. Failure to review Claiborne’s claim that the district court misapplied the obstruction of justice enhancement will cost Claiborne months, if not years, of additional time in prison because in my opinion, plain error exists on these facts. The obstruction enhancement requires willful conduct on the part of the defendant to whom it is applied. U.S.S.G. § 3 C 1 .1. This court has previously found such willful conduct where the defendant “actively participated” i n t he
escape attempt. See United States v
. C i s n e ros , 112 F.3d 1272, 1280 (5th Cir. 1997). Given that Claiborne did not unbuckle his seatbelt, agree to help Weldon

5

See also Uni ted States v. Whor ton , 79 F. App ’x 1, at *1 (5t h C i r. 2003) (p er cur iam ) 5 (af fir mi ng the app lica tio n of the obs tru cti on enhanc em ent w here the def enda nt had s cra ped
mo rta r fr om the bric ks near his bed and then cover ed the sc rap ed area wi th too thp ast e beca use the def

enda nt act ed “volun tar ily and inte ntio nally” (int erna l quot atio n mar ks
om itt ed) ); Uni ted States v. Barn um , 15 F.3d 181 (5t h Cir. 1994) (p er cur iam ) (af fir mi ng the
14 Case: 10-51189 Document: 00511803809 Page: 14 Date Filed: 03/28/2012No. 10-51189

escape, respond to his questions about escaping, or talk about escaping, there is

n o evidence that Claiborne plotted an escape or aided and abetted Weldon in doing so. Cf. Cisneros , 112 F.3d at 1279–80. Therefore, it was cle a r error for the district court to have applied the obstruction enhancement to Claiborne. This finding does not end the inquiry. Because Claiborne failed to object to the obstruction enhancement’s application at the district court, he must show a “reasonable probability that, but for the district court’s misapplication of the Guideline s , [ C laiborne] would have received a lesser sentence.” Villegas , 404 F.3d at 364. Absent t h e m i s a pplication of the obstruction enhancement, Claiborne’s total offense level would have been 25 a n d h i s Guidelines range would have been 57 to 71 months. See U.S.S.G. ch. 5, pt. A. Alt h ough the correct and incorrect Guidelines ranges overlap, Claiborne’s sentence was not in the overlapping range. His 78-month term of imprisonment was seven months
g reater than the maximum recommended sentence by the correct Guideli n e s range.

Th e f a cts of this case lead me to conclude that there is a “reasonable probability” that Claiborne would have r e c e i v ed a lesser sentence absent the district court’s m i s a p p l i cation of the obstruction enhancement. The district court neither indicated that it w o u l d have imposed the same sentence as an alternative sentence nor expressed an intent to go outside the Guidelines range. Cf. United States v. Bonilla , 524 F.3d 647, 656 (5th Cir. 2008) (stating that when the district court imposes a non-Guidelines sentence that does not directly result from an error in calculating the Guidelines, a sentence may be affirmed). In fact,

app lica tio n of the obs tru cti on enhanc em ent wh ere sho es we re del ivere d to the def enda nt wh ile he wa s in cus tod y that cont ained h a c k s a w blad es hidd en in the so les beca use altho ugh the d e f e n d a n t clai me d no kn ow led ge of the sho es , the evide nce sup por ted the logic al and
reas onable infe renc e that the def enda nt par tic ipat ed in a sc hem e to have the sho es cont aining the blad es d eliver ed to him ). 15 Case: 10-51189 Document: 00511803809 Page: 15 Date Filed: 03/28/2012No. 10-51189

the district court s p e cifically denied the Government’s request for an above-Guideli n e s s e nt e n c e , s t ati ng that it was not departing from the Guidelines because the range was “fair and reasonable.” Therefore, I would find the third
prong of plain error—effect on defendant’s substantial rights— met. See United States v. Carrizales-Jaramillo , 303 F. App’x 215, 217 (5th Cir. 2008) (per curiam) (finding reversible plain error where the incorrect Guidelines ra n g e (30–37 months) and correct Guidelines range (24–30 months) overlapped by one month but the defendant’s sentence (31 months) was not within the correct Guidelines
range, and the district court did not indica t e that it would have imposed the

same sentence or express an intent to sentence above the Guidelines range). Finally, the sentencing error “seriously affected the fairness, integrity, or public reputation of judicial proceedings” because it “clearly affected the [defendant’s]

s e n t e n c e
. ” United States v. Gonzales , 484 F.3d 712, 716 (5th Cir. 2007) (alteration and internal quotation marks omitted). Although the court applies th e c o rr e c t ru l e u n d e r o u r e arl i e s t-case-controls

r u l e , t h e rule applied is a bad one and one that for Claiborne, result s i n a miscarriage of justice.

16 Case: 10-51189 Document: 00511803809 Page: 16 Date Filed: 03/28/2012