IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40810

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ARTEMIO PESINA-ARANO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:14-CR-1168-1

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Artemio Pesina-Arano challenges his 77-month sentence for illegal 

reentry following deportation. Pesina asserts that the district court: (1) 

impermissibly participated in plea discussions in violation of Federal Rule of 

Criminal Procedure 11(c)(1); (2) improperly assessed criminal history points on 

the basis of his 2002 Kansas state sentence for attempted aggravated burglary; 

and (3) improperly applied the 16-level drug trafficking offense enhancement 

 

* 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

May 24, 2016

Lyle W. Cayce

Clerk

 Case: 15-40810 Document: 00513519969 Page: 1 Date Filed: 05/24/2016
No. 15-40810

2

under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 2008 Kansas convictions for 

selling cocaine.

As Pesina concedes, he is asserting for the first time on appeal that that 

the district court violated Rule 11(c)(1) by participating in plea discussions. 

Plain error review thus applies. See United States v. Davila, 133 S. Ct. 2139 

(2013) (rejecting argument that improper court participation in plea 

discussions requires automatic vacatur of plea rather than applying harmless 

or plain error review).

At the docket call, the district court repeatedly emphasized his belief 

that Pesina would face a harsher sentence if he went to trial instead of entering 

a guilty plea. The following exchange is representative of the district court’s 

comments: 

THE COURT: . . . I hope Mr. Pesina understands that by going to trial 

he is likely—well, not likely—he’s certain to face a larger sentence than 

if he did not go to trial.

MR. GOULD: I’ve tried to make that clear.

THE COURT: I mean, it is a certainty. 

Although they were likely well-intentioned, we are concerned that these 

statements reflect certainty about the outcome of the trial that could have 

pressured Pesina to plead guilty. See United States v. Pena, 720 F.3d 561, 573 

(5th Cir. 2013) (explaining that regardless of the district court’s objectivity, it 

is the defendant’s perception that determines whether he felt coerced to enter 

a plea). But Pesina did not plead guilty. In spite of the district court’s 

comments he still went to trial. And he raises no argument that the district 

court’s pretrial comments led to an unfair trial. That requires him to show

that the pretrial comments amounted to a predetermination of his sentence 

that prejudiced him. See United States v. Crowell, 60 F.3d 199, 205 (5th Cir. 

1995) (holding that when a defendant who went to trial challenges court 

 Case: 15-40810 Document: 00513519969 Page: 2 Date Filed: 05/24/2016
No. 15-40810

3

participation in plea negotiations, he must establish that the participation 

“affected the court’s impartiality in the conduct of the trial or sentencing”). 

Pesina cannot make that showing of an effect on his substantial rights. 

The district court sentenced Pesina to the low end of the Guideline range, 

which does not indicate impartiality or hostility. And unlike in Crowell, in 

which the district court rejected plea agreements because the statutory 

maximum sentences they allowed were too lenient, id., the pretrial comments 

in this case indicate no specific consideration of Pesina’s conduct or sentence 

prior to the sentencing hearing. The district court made only a general 

observation about the relative sentences of those who plead guilty versus those 

who are convicted at trial. Of course, the observation is also a true one as the 

Guidelines provide for lower sentences when a defendant has accepted 

responsibility. See U.S.S.G. § 3E1.1. Pesina thus has not shown that any 

district court error affected his substantial rights.

The comparison with Crowell reveals another reason why Pesina cannot 

overcome plain error review. The court participation in Crowell and other Rule 

11(c)(1) cases came in the context of a plea negotiation. FED. R. CRIM. P.

11(c)(1) (“An attorney for the government and the defendant’s attorney . . . may 

discuss and reach a plea agreement. The court must not participate in these 

discussions.”). In contrast, there is no indication here that any plea agreement 

was being negotiated. Pesina thus cannot establish any obvious error arising 

from court involvement in a defendant’s decision to plead guilty that is 

unconnected to any potential plea agreement. See United States v. Reasor, 418 

F.3d 466, 478-79 (5th Cir. 2005) (“As there was no ongoing plea negotiation, 

Rule 11’s prohibition does not apply.”). 

That leaves the two sentencing issues Pesina raises. This court reviews 

for clear error Pesina’s challenge to the district court’s determination that his 

 Case: 15-40810 Document: 00513519969 Page: 3 Date Filed: 05/24/2016
No. 15-40810

4

2002 Kansas state sentence for attempted aggravated burglary, when 

aggregated with his 2007 Kansas state probation revocation sentence,

qualified for three criminal history points. See U.S.S.G. §§ 4A1.1(a), 4A1.2(k); 

United States v. Nava, 624 F.3d 226, 229 (5th Cir. 2010); United States v. 

Martinez-Moncivais, 14 F.3d 1030, 1038 (5th Cir. 1994). The Kansas state 

sentencing documents appended to the Presentence Report (PSR) identified 

the imprisonment terms for each of Pesina’s 2002 and 2007 sentences as 12 

months. Because Pesina failed to offer any sworn testimony or other rebuttal 

evidence to counter the PSR’s determination that his aggregated sentences 

exceeded 13 months, the district court was free to adopt the PSR’s finding

without further inquiry. See United States v. Mir, 919 F.2d 940, 943 (5th Cir. 

1990). Pesina’s appellate challenge to this factual finding as clear error cannot 

rely on previously available information regarding Kansas’ state sentencing 

processes that is presented for the first time in this appeal. See Leverette v. 

Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). The district court 

thus did not clearly err in determining Pesina’s criminal history score. See

United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). 

Pesina concedes that his final argument—that the district court erred in 

applying the § 2L1.2(b)(1)(A)(i) drug trafficking enhancement because the 

Kansas drug offense includes not just selling drugs but giving drugs as a gift 

—is being raised for the first time on appeal. But the standard of review does 

not matter as this challenge is foreclosed by United States v. Martinez-Lugo, 

782 F.3d 198, 204–05 (5th Cir.), cert. denied, 136 S. Ct. 533 (2015). 

The judgment is AFFIRMED.

 Case: 15-40810 Document: 00513519969 Page: 4 Date Filed: 05/24/2016