IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-41140

Summary Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

EJALTE DELEON, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:16-CR-1743-1

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

After pleading guilty to conspiring to possess with intent to distribute a 

controlled substance, Ejalte Deleon was sentenced to 151 months of 

imprisonment. On appeal, Deleon raises issues pertaining to the 

determination of his offense level under the Sentencing Guidelines.

 

* 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

September 21, 2018

Lyle W. Cayce

Clerk

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No. 17-41140

2

Deleon first challenges the denial of credit for acceptance of 

responsibility under U.S.S.G. § 3E1.1. He asserts that he adequately and 

timely accepted responsibility for his drug conspiracy offense, and he argues 

that he should have been presumed innocent of the additional criminal charge 

of transporting an illegal alien, which was lodged against him based on his 

conduct while on pretrial release. Deleon notes that, when his sentencing 

hearing was held, he had not yet pleaded guilty to the alien transportation 

charge. He contends that there was no reliable evidence presented at the 

sentencing hearing to show that he did not withdraw from criminal conduct 

and that his mere arrest on the charge of transporting an illegal alien is not 

enough to warrant denial of acceptance of responsibility. 

We are entitled to take judicial notice of the records of the district court. 

See ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 n.2 (5th Cir. 1981). 

In view of the criminal complaint and sworn affidavit detailing Deleon’s alleged 

conduct underlying the alien transportation charge, to say nothing of his 

subsequent guilty plea to that charge, we conclude that the district court’s 

denial of a § 3E1.1 reduction was not without foundation and should be upheld. 

See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008).

Deleon next raises a challenge to the denial of a mitigating role 

adjustment pursuant to U.S.S.G. § 3B1.2. However, he fails to argue in his 

brief that a mitigating role adjustment was warranted under the facts of his 

case. He has therefore waived the issue. See United States v. Reagan, 596 

F.3d 251, 254-55 (5th Cir. 2010); see also FED. R. APP. P. 28(a)(8)(A). In any 

event, our review shows that the district court’s determination that Deleon was 

not a minor or minimal participant is plausible in light of the record read as a 

whole, and therefore not clearly erroneous. See United States v. SanchezVillarreal, 857 F.3d 714, 721 (5th Cir. 2017).

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No. 17-41140

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The primary argument raised in Deleon’s brief as to the mitigating role 

issue is that the district court erred by failing to provide a sufficient 

explanation for its denial of the adjustment. However, because Deleon did not 

object in the district court to the sufficiency of the district court’s explanation 

for denying a mitigating role, his challenge is subject to plain error review. See 

United States v. Fernandez, 770 F.3d 340, 345 (5th Cir. 2014). Deleon fails to 

meet the plain error standard. See Puckett v. United States, 556 U.S. 129, 135 

(2009).

As his third and final issue, Deleon contends that the district court 

clearly erred in applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) 

for possession of dangerous weapon. The enhancement was imposed on the 

basis of a pellet gun found under a sofa seat cushion in the living room of the 

stash house that Deleon rented to facilitate the operations of a drug cartel. 

Deleon argues that the Government failed to prove that he possessed the pellet 

gun; however, as determined by the district court, Deleon controlled the stash 

house and thus may be deemed to have been in constructive possession. See 

United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012). Deleon also contends 

that there was no evidence that the pellet gun was close to the narcotics stored 

within the stash house; however, the record establishes that narcotics were 

found at the entrance of the stash house. Deleon has failed to establish clear 

error. See United States v. Romans, 823 F.3d 299, 317 (5th Cir. 2016); United 

States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).

AFFIRMED.

 Case: 17-41140 Document: 00514651592 Page: 3 Date Filed: 09/21/2018