IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40009

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ELIZA LOZANO LUMBRERAS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:10-CR-335-3

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Eliza Lozano Lumbreras appeals following her conviction and sentence 

on one count of conspiring to commit health care fraud. She argues that her 

midtrial guilty plea was involuntary because it was impelled by her counsel’s 

ineffective assistance.

Because Lozano Lumbreras made no objections in the district court 

concerning her plea, our review is for plain error. See United States v. Brown, 

328 F.3d 787, 789 (5th Cir. 2003). To show plain error, she must show a 

* 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

October 21, 2014

Lyle W. Cayce

Clerk

 

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No. 14-40009

forfeited error that is clear or obvious and that affects her substantial rights. 

See Puckett v. United States, 556 U.S. 129, 135 (2009). If she makes such a 

showing, we have the discretion to correct the error but only if it seriously 

affects the fairness, integrity, or public reputation of judicial proceedings. Id.

“The longstanding test for determining the validity of a guilty plea is 

whether the plea represents a voluntary and intelligent choice among the 

alternative courses of action open to the defendant.” Brown, 328 F.3d at 789 

(internal quotation and citation omitted). The procedure embodied in Federal 

Rule of Criminal Procedure 11 “assist[s] the district judge in making the 

constitutionally required determination that a defendant’s guilty plea is truly 

voluntary. Second, the Rule is intended to produce a complete record at the 

time the plea is entered of the factors relevant to this voluntariness 

determination.” McCarthy v. United States, 394 U.S. 459, 465 (1969) (internal 

footnote omitted).

The rearraignment transcript provides no support for Lozano

Lumbreras’s assertion that her guilty plea was involuntary. See Brown, 328 

F.3d at 789. She has not made the requisite showing of plain error. See 

Puckett, 556 U.S. at 135. To the extent that Lozano Lumbreras is asserting a 

claim of ineffective assistance of counsel, because the record has not been 

sufficiently developed to permit a fair evaluation of the claim we adhere to our

general rule that ineffective assistance claims will not be considered on direct 

appeal. See United States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001).

Lozano Lumbreras asserts that her sentence was unreasonable. She 

contends that the district court erred in imposing an enhancement for her role 

in the offense under United States Sentencing Guidelines § 3B1.1(c). She also 

argues that her sentence was substantively unreasonable. 

Pursuant to Gall v. United States, 552 U.S. 38, 49-51 (2007), we engage 

in a bifurcated review process of the sentence imposed by the district court. 

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No. 14-40009

United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, 

we consider whether the district court committed a significant procedural 

error, such as failing to calculate or incorrectly calculating the guidelines 

range. Gall, 552 U.S. at 51. If there is no error or the error is harmless, we

may proceed to the second step and review the substantive reasonableness of 

the sentence imposed under a deferential abuse of discretion standard, taking 

into account the totality of the circumstances. Gall, 552 U.S. at 51.

The presentence report, which the district court adopted in relevant part, 

shows that Lozano Lumbreras, along with a co-defendant, devised an 

especially complex or intricate scheme to execute and conceal the offense and 

that she devised a scheme in which she, with the assistance of others, 

fraudulently billed Medicare and Medicaid programs. The facts discussed 

above are sufficient to support a two-level role enhancement. See United States 

v. Paden, 908 F.2d 1229, 1236 (5th Cir. 1990). The district court’s decision on 

the role enhancement is not clearly erroneous. United States v. Zuniga, 720 

F.3d 587, 590 (5th Cir. 2013).

Because Lozano Lumbreras did not object, we review for plain error her 

claim that her sentence was substantively unreasonable. See United States v. 

Peltier, 505 F.3d 389, 392 (5th Cir. 2007). Her argument, which is based on 

her age and risk of recidivism, fails to show that her sentence was 

substantively unreasonable, and likewise fails to rebut the presumption of 

reasonableness applicable to her within-guidelines sentence. See United 

States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

In view of the foregoing, the judgment of the district court is affirmed. 

Lozano Lumbreras’s motion for bail pending appeal is denied.

AFFIRMED; MOTION DENIED.

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