United States Court of Appeals

for the Fifth Circuit

No. 20-60633

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Fortrell Latrae Sain, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:19-CR-62-3

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:*

Fortrell Latrae Sain appeals his conviction following a jury trial of

conspiracy to possess with intent to distribute five kilograms or more of 

cocaine and his sentence of, inter alia, 210 months in prison and a fine of 

$10,000. He raises six issues on appeal.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 15, 2021

Lyle W. Cayce

Clerk

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First, Sain asserts that the district court violated his Sixth 

Amendment rights by preventing him from fully cross-examining the 

confidential informant (CI) involved in his case. We review a Confrontation 

Clause claim de novo, subject to a harmless-error analysis. United States v. 

Gentry, 941 F.3d 767, 781 (5th Cir. 2019), cert. denied, 140 S. Ct. 2731 (2020). 

In the absence of a constitutional violation, however, we review a limitation 

of cross-examination only for abuse of discretion. United States v. Roussel, 

705 F.3d 184, 194 (5th Cir. 2013).

Sain’s Confrontation Clause claim is unpersuasive. Defense counsel 

had multiple opportunities to highlight the CI’s motivation to lie in the 

instant matter based on his criminal history, immigration status, and financial 

incentives, i.e., being paid by the government for building cases. See United 

States v. McCullough, 631 F.3d 783, 791 (5th Cir. 2011); United States v. 

Skelton, 514 F.3d 433, 443 (5th Cir. 2008). Moreover, Sain does not identify 

what further information he would or could have elicited on these subjects

that would have given the jury a “significantly different” view of the CI’s 

credibility. See Gentry, 941 F.3d at 781. As to the CI’s conduct in a prior, 

unrelated investigation, the lack of connection between the CI’s conduct and 

the dismissal of either that prior case or the instant matter supports the 

district court’s conclusion that the evidence was at best only marginally 

relevant and thus subject to limitation. See id.; Skelton, 514 F.3d at 442–43. 

With respect to the CI’s driver’s license and alleged drug use, the district 

court permitted sufficient cross-examination. See United States v. Maloof, 

205 F.3d 819, 829 (5th Cir. 2000). In any event, we conclude that any error 

in limiting cross-examination on these subjects was harmless. See Delaware 

v. Van Arsdall, 475 U.S. 673, 684 (1986); Skelton, 514 F.3d at 443. 

In his second challenge, Sain contends that the Government violated 

his due process rights by delaying or withholding potentially exculpatory 

evidence or evidence that could have been used for impeachment purposes. 

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See Giglio v. United States, 405 U.S. 150, 152–54 (1972); Brady v. Maryland, 

373 U.S. 83 (1963). We review de novo Sain’s claims of violations under 

Brady. United States v. Infante, 404 F.3d 376, 386 (5th Cir. 2005). Even if 

the alleged evidence (phone recordings) exists, which Sain has not 

demonstrated, Sain fails to demonstrate that the evidence would support a 

Brady claim. See United States v. Edwards, 442 F.3d 258, 266 (5th Cir. 2006);

Hughes v. Johnson, 191 F.3d 607, 629–30 (5th Cir. 1999). Sain also fails to 

show that the Government “suppressed” the identity of a potential witness. 

See United States v. Sipe, 388 F.3d 471, 487 (5th Cir. 2004). Finally, Sain does 

not contend, much less show, prejudice to his substantial rights from any 

delays. See United States v. Dailey, 868 F.3d 322, 328 (5th Cir. 2017). 

In his third assignment of error, Sain contends that the Government 

engaged in sentencing factor manipulation in violation of his due process 

rights by increasing the drug deal to involve 25 kilograms of cocaine. Sain’s 

objections at sentencing did not alert the district court to the nature of the 

error he alleges here, so we review only for plain error. United States 

v. Perryman, 965 F.3d 424, 427 (5th Cir. 2020), cert. denied, No. 20-6640, 

2021 WL 1520860 (U.S. Apr. 19, 2021). Because this court has not explicitly 

recognized sentencing entrapment or sentencing factor manipulation as a 

cognizable defense, see United States v. Stephens, 717 F.3d 440, 446 (5th Cir. 

2013); United States v. Tremelling, 43 F.3d 148, 150–52 (5th Cir. 1995), Sain 

cannot show a clear or obvious error, see United States v. Salinas, 480 F.3d 

750, 759 (5th Cir. 2007). This issue lacks merit.

In his fourth challenge, Sain asserts the district court should have 

applied a mitigating role reduction to his Sentencing Guidelines offense level. 

See U.S.S.G. § 3B1.2. But the district court’s denial of the mitigating role 

adjustment based on its finding that Sain undervalued his role in the 

conspiracy is plausible considering the record. See § 3B1.2, comment. 

(n.3(C)(i)–(v)); United States v. Bello-Sanchez, 872 F.3d 260, 264 (5th Cir. 

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2017). Sain also fails to show that the district court clearly erred in denying 

him a role adjustment. See United States v. Gomez-Valle, 828 F.3d 324, 327 

(5th Cir. 2016).

Sain contends in his fifth challenge that the district court erred in 

imposing a $10,000 fine without making a specific finding that he could 

afford to pay a fine. See U.S.S.G. § 5E1.2(a); United States v. Fair, 979 F.2d 

1037, 1040 (5th Cir. 1992). Sain did not raise this issue during sentencing. 

Because the district court adopted the presentence report and followed its 

recommendations on the fine, Sain fails to show the district court plainly 

erred. See United States v. Brantley, 537 F.3d 347, 351–52 (5th Cir. 2008); cf.

Fair, 979 F.2d at 1042.

In his final assertion, Sain states that his counsel rendered ineffective 

assistance at trial and sentencing by failing to make “a detailed proffer of 

exactly what information he did receive in discovery” and failing to preserve

the grounds now raised as to the sentencing factor manipulation and fine 

issues. We decline to consider these claims without prejudice to Sain’s

raising them on collateral review. See United States v. Isgar, 739 F.3d 829, 841 

(5th Cir. 2014); United States v. Gordon, 346 F.3d 135, 136 (5th Cir. 2003).

AFFIRMED.

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