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

No. 15

- 10076

UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v. EDGAR DALMIRA DIAZ,

Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:13

- CR

- 248

Before ELROD, GRAVES, and COSTA, Circuit Judges

. PER CURIAM: * Edgar Dalmira Diaz appeals his sentence following his guilty

- plea conviction for malicious use of explosive materials . Diaz challenges the district court’s denial of the Government’s motion for a U.S.S.G. § 5K1.1 downward departure based on Diaz’s substantial assistance to authorities. Finding no

error, we AFFIRM the district court’s judgment.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 8, 2016 Lyle W. Cayce Clerk Case: 15-10076 Document: 00513458252 Page: 1 Date Filed: 04/08/2016No. 15

- 10076

2 Diaz contends, under our p recedent, t hat the district court erred in denying the § 5K1.1 motion by considering the severit y of his offense rather than considering factors related to his substantial assistance to the G overnment. See United States v. Desselle , 450 F.3d 179 (5th Cir. 2006). These arguments were not asserted by Diaz before the di strict court; therefore, plain

error review is appropriate

. See United States v. Izaguirre

- Losoya , 219 F.3d 437, 441 (5th Cir. 2000)

. To establish plain error, a defendant must show that “(1) th ere is an error, (2) the error is clear or obvious, and (3) the error affects his substantial rights.” United States v. Coil , 442 F.3d 912, 916 (5th Cir. 2006). If those three conditions are satisfied, this court may grant relief if “the error seriously af fects the fairness, integrity, or public reputation of judicial proceedings.” Id. Diaz has not shown that the district court committed plain error in denying the motion. The plain language of U.S.S.G. § 5K1.1 states, first, that the court may depart from t he guidelines. If the district court find s departure warranted , the guideline subsequently instructs that the district court’s reasons for determining the appropriate reduction under the guideline may include consideration of the five enumerated factors. U .S.S.G. § 5K1.1 (a). The parties dispute whether a district court's initial decision whether to depart is guided by the five enumerated factors. We need not decide that question, however, because assuming those assistance

- based factors must be considered, the district court did consider them here. While Diaz urges us to find that the district court focused only on his crime

— as opposed to focusing on any of § 5K1.1 ’s enumerated factors

— we cannot; the record simply offers no support for his argument. Instead, the transcript of Diaz’ s sentencing hearing demonstrates that before denying the Government’s motion for downward depa rture, the district court did in fact consider the nature, extent, and significance of his assistance to authorities in Case: 15-10076 Document: 00513458252 Page: 2 Date Filed: 04/08/2016No. 15

- 10076

3 this case

. See U.S.S.G. § 5K1.1 , comment (backg’d) ; United States v. Johnson , 33 F.3d 8, 9 (5th Cir.1994). In fact, the district court considered Diaz’s assistance to the G overnment on at least three occasions during the sentencing hearing

. In one of those instance s, the district court provided the following explanation: I think, as [Diaz’s Counsel] always does, she has put forth the most eloquent argument for why I should consider [the § 5K1.1 motion]

. . . . I 'm going to deny the government’ s request fo r substantial assistance. I don’ t think I see it in this case. I know you were cooperative from the beginning and perhaps

–

. . . . I don't think substantial assistance is appropriate.

. . . [R]ight now I will deny the motion for substantial assistance under the circumstances. The appropriate sentence in this case, Mr. Diaz, under all of the circumstance[s ], regardless of the government’ s position that it was an aberrant situation that in their view you substantially assisted them, none of that outweighs the damage here and the harm that you caused to all these other peop le and the amount of money that’ s been incurred by virtue of your actions for restitution, $1.5 million. So in my vie w, the Court’ s view, the only appropriate sentence in this case to carry ou t the purposes of our sentencing statute is the minimum which is the 60 months in prison. Thus, it is clear from the record that the district court did not err, plainly or otherwise. The district court’s judgment is therefore affirmed. AFFIRMED. Case: 15-10076 Document: 00513458252 Page: 3 Date Filed: 04/08/2016