IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10244

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE LUIS MARIN-PAYAN,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:15-CR-141-1

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Jose Luis Marin-Payan pleaded guilty of possession of a controlled 

substance with intent to distribute, and he was sentenced within the 

guidelines range to a 60-month term of imprisonment and to a three-year 

period of supervised release. Marin-Payan raises issues challenging his 

sentence. After United States v. Booker, 543 U.S. 220 (2005), sentences are 

reviewed for procedural error and substantive reasonableness under an abuse 

 

* 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

December 22, 2016

Lyle W. Cayce

Clerk

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No. 16-10244

2

of discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th 

Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). Ordinarily, 

the district court’s application of the Guidelines is reviewed de novo, and its 

fact findings are reviewed for clear error. United States v. Trujillo, 502 F.3d 

353, 356 (5th Cir. 2007). A factual finding is not clearly erroneous if it is 

plausible in light of the record as a whole. United States v. Alaniz, 726 F.3d 

586, 618 (5th Cir. 2013). 

Where error has been forfeited by the failure to make a timely objection, 

this court’s review is for plain error. United States v. Arviso-Mata, 442 F.3d 

382, 384 (5th Cir. 2006). To establish plain error, an appellant must show 

a forfeited error that is clear or obvious and that affected his substantial rights. 

Puckett v. United States, 556 U.S. 129, 135 (2009). If the appellant makes this 

showing, “the court of appeals has the discretion to remedy the error-discretion 

which ought to be exercised only if the error seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” Id. (internal quotation 

marks and citation omitted).

Marin-Payan contends that, in determining the drug quantity on the 

basis of $5,470 in cash seized at the time of his arrest, the district court erred 

by failing to find that the amount of seized drugs did not reflect the scale of the 

offense, contrary to U.S.S.G. § 2D1.1, comment. (n.5) (2015). Marin-Payan

invokes United States v. Henderson, 254 F.3d 543, 544 (5th Cir. 2001) (Garza, 

J., concurring). He concedes that this court’s review is for plain error. 

The district court adopted the PSR’s findings. We observe that Note 5 

was before the court because it was discussed in the addendum to the 

presentence report and in the parties’ responses to the addendum. The district 

court expressly relied on the addendum and the Government’s response in 

overruling Marin-Payan’s objection to the lack of evidence supporting the cash-

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No. 16-10244

3

to-drugs conversion. Marin-Payan has not shown that the district court 

committed a clear or obvious error in failing to make findings under Note 5. 

See Puckett, 556 U.S. at 135.

Marin-Payan also contends that the district court clearly erred in finding 

that the evidence supported conversion of the cash to drug-quantity amounts. 

The district court’s factual finding was plausible in light of the record as a 

whole and was not clearly erroneous. See Alaniz, 726 F.3d at 618. The court 

was not required to accept as true Marin-Payan’s assertions in his post-arrest 

statement minimizing the extent of his drug dealing. See id. There was ample 

circumstantial evidence supporting the district court’s finding that the cash 

more accurately reflected the scale of Marin-Payan’s offense, and Marin-Payan

did not present rebuttal evidence or otherwise show that the information in 

the PSR was unreliable. See id.; see also Trujillo, 502 F.3d at 357. The 

judgment is AFFIRMED.

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