### 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 ap peals 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 cou nsel’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 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 October 21, 2014

Lyle W. Cayce Clerk Case: 14-40009 Document: 00512809807 Page: 1 Date Filed: 10/21/2014No. 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 a nd 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 Fed eral Rule of Criminal Procedure 11 “ assist [s] the district judge in makin g the constitutionally required determ ination 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. ” McCar thy 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 requisit e 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, b ecause 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, 52 7 (5th Cir. 2001). Lozano Lumbreras asserts that her sentence was unreasonable. She contends that th e district court erred in imposing an enhancement for her role in the offe nse under U nited 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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- 40009
United States v. Delgado

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

we consider whether the district court committed a significa nt 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 sen tence imposed under a deferential abuse of discretion standard, taking into account th e totality of the circumstances. Gall , 552 U.S. at 51. The presentence report, which the district court adopted in relevant part, show s that Lozano Lumbreras, along with a co
- defendant, dev is ed an especially complex or intricate scheme to execute and conceal the offense and that she devised a scheme in which she, w ith the assistance of others, fraudulently billed Medicare and Medicaid programs

. The facts d iscussed 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 (5t h 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 , 50 5 F.3d 389, 392 (5th Cir. 2007). Her argument, which is based on her age and ris k of recidivism, fails to show that her sentence was substantively unreasonable, and likewise fail s to rebut the presumption of reasonableness applicable to h er within

- gui delines 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 Lumbr e ras’s motion for bail pending appeal is denied. AFFIRMED; MOTION DENIED.

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