IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-11251

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MANUEL ALEJANDRO DURAN-MUNEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CR-88-1

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

Manuel Alejandro Duran-Munez (Duran) appeals the above-guidelines

sentence imposed on remand following his illegal reentry conviction. He argues

for the first time on appeal that his sentence was procedurally unreasonable and

that the district court violated his Fifth Amendment right against selfincrimination by allegedly equating his silence at sentencing with a lack of

remorse for his extensive criminal history. Our review is for plain error only. 

Puckett v. United States, 556 U.S. 129, 135 (2009). To establish plain error,

United States Court of Appeals

Fifth Circuit

F I L E D

August 21, 2013

Lyle W. Cayce

Clerk

* 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.

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Duran must show a forfeited error that is clear or obvious and that affects his

substantial rights. Id. at 135.

Duran contends that because he previously apologized to the court during

his original sentencing, the district court’s finding on remand that his silence

evinced an absence of remorse for his extensive criminal history was clear error,

which resulted in a procedurally unreasonable sentence. A sentencing court

commits procedural error if it determines a sentence based on erroneous facts. 

United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). 

A defendant’s lack of remorse at sentencing can be considered by the sentencing

court in fashioning the appropriate sentence. See United States v. Kippers,

685 F.3d 491, 499 (5th Cir. 2012). 

The district court commented on Duran’s lack of remorse during

resentencing on more than one occasion, and Duran neither spoke nor objected

to the district court’s finding that he was not contrite. Duran’s lack of remorse

could have also been reasonably inferred not only from his silence but from his

extensive criminal history and disregard for authority, which the district court

expressly stated factored into its sentencing decision. On plain error review, the

district court’s finding of no remorse was not a plain or obvious error and,

moreover, given that the perceived lack of remorse was but one factor

contributing to the sentence imposed, along with Duran’s lack of respect for

authority, the serious nature of his crimes, and an extensive criminal history in

a short timespan, Duran has not shown that his substantial rights were affected

by this finding. See Puckett, 556 U.S. at 135. Finally, we will not substitute our

judgment based on a cold record for that of the district court, which had an

opportunity to observe the defendant’s demeanor and judge his sincerity.

Cf. United States v. Salinas, 122 F.3d 5, 7-8 (5th Cir. 1997). 

Citing Mitchell v. United States, 526 U.S. 314 (1999), Duran argues that

the district court violated his Fifth Amendment right against self-incrimination

by equating his silence at sentencing with a lack of remorse when reference was

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No. 12-11251

made by the prosecution to his kidnapping his ex-wife, a crime for which he had

been convicted and sentenced. Duran’s reliance on Mitchell is misplaced; 

Mitchell’s holding was limited to the drawing of adverse inferences from a

defendant’s silence with regard to details of the offense of conviction for which

the defendant was being sentenced--in this case, Duran’s illegal reentry into the

United States. See 526 U.S. at 330. Moreover, Duran’s Fifth Amendment

privilege was not at issue; he had pleaded guilty to and had been sentenced for

the aggravated kidnapping offense. Under Mitchell, there is no basis for

asserting the Fifth Amendment privilege where there can be no further

incrimination. Id. at 326. Duran has not shown, on plain error review, that he

had a basis to assert his Fifth Amendment privilege concerning his aggravated

kidnapping conviction.

AFFIRMED.

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