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 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.

United States Court of Appeals

Fifth Circuit

FILED

April 8, 2016

Lyle W. Cayce

Clerk

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No. 15-10076

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Diaz contends, under our precedent, that the district court erred in 

denying the § 5K1.1 motion by considering the severity of his offense rather 

than considering factors related to his substantial assistance to the 

Government. See United States v. Desselle, 450 F.3d 179 (5th Cir. 2006). These 

arguments were not asserted by Diaz before the district court; therefore, plainerror 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) there 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 affects 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 the guidelines. If the district court finds 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 departure, the district court did in fact 

consider the nature, extent, and significance of his assistance to authorities in 

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No. 15-10076

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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 Government on at least three occasions during the sentencing 

hearing. In one of those instances, 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 for 

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 people and 

the amount of money that’s been incurred by virtue of your 

actions for restitution, $1.5 million. So in my view, the Court’s 

view, the only appropriate sentence in this case to carry out 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. 

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