### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 f or 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 abo v e - 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 selfincriminatio n b y allegedly equating his s ilence at sentencing with a lack of

remorse for h is extensive criminal history. Our review i s for plain e r r o r only. Puckett v. United S t a tes , 556 U.S. 129, 135 (2009). To establish plain error, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 21, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-11251 Document: 00512349545 Page: 1 Date Filed: 08/21/2013No. 12-11251

Duran must s h ow a forfeited error that is c lear or obvi o u s a n d t h a t affects his substantial rights. Id. at 135. Duran contends that because h e previously apologized to the court during his original sentencing, the district court’s finding o n r emand t h a t his silence evinced an absence of remorse for his extensive criminal history was clear error, which resulted in a procedural l y unreasonable s entence. A sentencing court commits procedural e rror if it determines a sentence based on erroneous facts. U n i t ed States v. G utierrez-Hernandez , 581 F .3d 251, 254 ( 5th C ir. 2009 )

. A defendant’s lack of remorse at sentencing can be considered by the sentencing court in fashionin g t h e appropriate sentence. See United S tates v. Kippers , 685 F.3d 491, 499 (5th Cir. 2012). The dist r ict court c ommented o n Duran’s lack of remorse during resentencing on m ore than one occasion, a nd Duran neither spoke nor objected to the district court’s finding that he w a s not contrite. Duran’s lack of remorse could h ave also been r easonably i nferred not only f rom his silence but from his extensive criminal history and disregard for authority, which the di strict court expressly stated factored into its s entencing decision. On p lain error review, the district c ourt’s finding of no remorse w as not a p l a i n or obvious error and,
moreover, given that the p e r c eived lack of remorse was but one factor contributing to the sentence imposed, along with Duran’s lack o f respect for authority, the serious n ature of his crimes, and an extensive criminal history in

a short timespan, D uran has n ot shown that his substantial rights were affected by this finding. See Puckett , 556 U.S. at 135. Finally, we will not s ubstitute our j u d g m ent based on a cold record for that of the district court, which h a d a n opportunity to observe the defendant’s demeanor and j udge 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 e quating his silence at sentencing with a lack o f remorse when reference was 2 Case: 12-11251 Document: 00512349545 Page: 2 Date Filed: 08/21/2013No. 12-11251

made by the prosecution to h is kidnapping his ex-wife, a c rime for which he had been convicted and sentenced. Duran’s re l i a n c e on Mitchell is misplaced; M itchell’s holding was limited to the drawing of adverse inferences fr o m a defendant’s silence with regard to d etails of the offense o f conviction for which the defendant was being s entenced--in this case, Duran’s illegal r eentry into the Un i t e d States. See 526 U.S. at 3 30. Moreover, Duran’s Fifth Amendment privilege was not at issue; he had pleaded guilty to and had been sentenced for the a ggravated kidnapping offense. Und e r M i t chell , there is n o basis for asserting the Fifth Amen d m e n t p rivilege where there can b e no further incrimination. Id. at 326. Duran has n ot shown, on p l ain error r eview, that he had a basis to assert his Fifth Amendment privilege concerning his aggravated kidnapping conviction. AFFIRMED.

3 Case: 12-11251 Document: 00512349545 Page: 3 Date Filed: 08/21/2013