*Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in LocalRule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40475

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS GUTIERREZ RIVERA,

also known as Domingo Gaona,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

(M-95-CR-21-1)

June 20, 1997

Before JONES, STEWART, and DENNIS Circuit Judges.

CARL E. STEWART, Circuit Judge:*

Appellant Jesus Guitierrez Rivera (“Rivera”) appeals his convictions for possession of

counterfeit currency in violation of 18 U.S.C. § 472, and possession of a firearm by a convicted felon

pursuant to 18 U.S.C §§ 922(g) and 924 (a). For the following reasons, we affirm.
1

 Possession of counterfeit currency in violation of 18 U.S.C. § 472 is punishable by up to 15 years in prison

and/or a $250,000 fine.

2

18 U.S.C. §§ 922(g)(1) and 924 (a)(2) provide that a felon in possession of a firearm is subject to

imprisonment of a term not to exceed ten years and/or a fine of $250,000, and a $50 special assessment.

3

 U.S.S.G 1B1.3, in pertinent part, provides, “Unless otherwise specified . . . specific offense characteristics

. . . shall be determined on the basis of . . . all acts and omission committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by defendant . . . that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that

offense . . . all harm that resulted from the acts and omissions . . . and all harm that was the object of such acts and

omissions.”

2

FACTS AND PROCEDURAL HISTORY

In a two-count indictment, Rivera was charged with possession of counterfeit currency

(“Count I”)1 and possession of a firearm by a convicted felon (“Count II”)2. Rivera pled guilty to

Count I pursuant to a plea agreement. As a part of the plea agreement, the Government

recommended that Count II be dismissed. The court reminded Rivera that it was not required to

accept the guilty plea. As a factual prerequisite to the court’s acceptance of the guilty plea, Rivera

acknowledged that he had given his wife a $50 bill that he knew was counterfeit for the purpose of

buying beer. A series of sentencing proceedings followed.

On June 1, 1995, Rivera appeared for sentencing before the district court. The court stated

that it would hold Rivera accountable for his possession of the firearm, as charged in Count II of the

indictment through the “relevant conduct” guideline, U.S.S.G. § 1B1.3.3 According to Rivera’s

Presentence Report (“PSR”), Rivera was in possession of a pistol at the same time he was handling

the counterfeit currency. After the Probation Officer stated that the counterfeit possession guideline,
4

 Effective November 1, 1995, § 2B5.1 was amended to include an additional specific offense characteristic

for possession of a “dangerous weapon” during the offense. See U.S.S.G. App. C, Amendment 513.

5

 The court evidently believed that under 1B1.3, it should be able to group Count II with Count I in some

manner for determining Rivera’s base offense level for the counterfeiting offense. 

6 U.S.S.G 3E1.1, in pertinent part, provides “if the defendant clearly demonstrates acceptance of

responsibility for his offenses, decrease level by 2 levels.”

7

 Apparently, there is no transcript of this hearing. The government does not reference this hearing in its

brief nor does it acknowledge that this hearing occurred.

3

§ 2B5.1, included no specific offense characteristic4for firearm possession, the court instructed the

Probation Officer to contact the Sentencing Commission to inquire whether “under the fact situation

here they think this is something [to which the] relevant conduct guideline applies.”

On June 9, 1995, at the second sentencing proceeding, the court stated that the “Probation

Office came right back with exactly what they told me” during the first hearing.5 Six days later, the

court again continued the proceeding because the lead Assistant U.S. Attorney was not present.

On June 30, 1995, the parties convened for a fourth sentencing proceeding. By this time, the

court learned for the first time that the day Rivera was arrested for the counterfeit offense, he had

shot a fellow patron at a bar. Because this news purportedly complicated matters concerning Rivera’s

plea agreement--e.g., his willingness to accept responsibility under § 3E1.16 -- the court again

continued the hearing to allow Rivera to confer with his attorney.

At a hearing on August 9, 1995, the court advised that “it cannot follow the plea agreement”

and that it would allow Rivera to withdraw his guilty plea.7 The parties met again on November 20,

1995. Although the court assert ed that it would “not have the second count dismissed,” Rivera

refused to withdraw his guilty plea. By that time, Rivera and the Government had reached a second

plea agreement by which Rivera would also plead guilty to Count II. Noting that Rivera had been
8 According to the PSR, Rivera had charges pending in 1994 for attempted murder; 1993 for aggravated

assault stemming from stabbing his wife and public intoxication; in 1989 for possession in Ohio, as well as absconsion

from an Ohio work release center; and in 1988 for domestic violence where it wasreported that Rivera beat and kicked

his wife and daughter (Ohio). 

4

convicted of several felonies and had engaged in other violent conduct, the court announced its

intention to enter an upward departure because Rivera’s criminal history score underrepresented his

violent past. The hearing was once again continued so that Rivera’s attorney could consult with the

attorney representing Rivera on pending state criminal charges.8 

On March 25, 1996, Rivera announced his desire to be rearraigned on Count II. Pursuant to

a written plea agreement, Rivera pleaded guilty to both counts on the next day. As part of the

agreement, the Government recommended that Rivera be given the maximum benefit of the

acceptance of responsibility guideline and that he be sentenced at the bottom of the guideline range.

The Government also recommended that the Court impose concurrent sentencesfor CountsI and II.

The court advised Rivera that it was not required to follow the Government’s recommendation.

The ProbationOfficemade the following sentencing recommendations: Rivera’s base offense

levelsfor the counterfeit-possession and the firearm-possession offenses were 9 and 14, respectively.

 His combined adjusted offense level was 15. Rivera was entitled to a two-level reduction for

acceptance of responsibility, resulting in a total offense level of 13. The Probation Office also noted

that despite Rivera’s numerous convictions, prior arrests, and pending charges involving violent

conduct, his criminal history computed only to Category II. The result was a guideline imprisonment

range of 15 to 21 months. The Probation Office did not indicate to the court that Rivera’s pending

criminal chargessuggested that his criminal history score underrepresented his past criminal conduct
5

and warranted an upward departure. Rivera objected to the suggestion by the court that an upward

departure was appropriate.

After the court again postponed sentencing due to confusion relating to credit for time served

in state custody, Rivera was sentenced on May 1, 1996. Rivera made no further objections at that

time. The court adopted the sentencing guideline range of 15 to 21 months, as reported in the PSR.

However, after ruling that an upward departure was warranted based on the numerous incidents of

violent conduct by Rivera that were detailed in his PSR, the court sentenced Rivera to 60 months’

imprisonment and a three-year supervised release term. Rivera timely filed notice of appeal.

DISCUSSION

On appeal, Rivera argues that the district court abused its discretion in applying an upward

departure after it concluded that Rivera’s criminal history categorywasinadequate; the district court

violated the constitutional requirement of separation of powers by contacting the sentencing

Commission asto the propriety of a particularsentence and then rejecting the recommendation ofthe

Probation Officer based upon the Sentencing Commission’s response; and the district court violated

Fed. R. Crim. P. 11(e) by participating in the discussions between the Government and Rivera about

the plea agreement(s).

I. VALIDITY OF TRIAL COURT’S UPWARD DEPARTURE

We review the district court’s decision to depart upward for an abuse of discretion. United

States v. Route, 104 F.3d 59 (5th Cir. 1997) (citing United States v. Ashburn, 38 F.3d 803, 807 (5th

Cir. 1994) (en banc), cert. denied, ____ U.S. ____, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995)). The

district court has wide discretion in determining the extent of upward departure, and we will affirm
6

an upward departure if (1) the court gives acceptable reasons for departing and (2) the extent of the

departure isreasonable. United States v. Route, 104 F.3d 59, 64 (5thCir. 1997) (citing United States

v. Hawkins, 87 F.3d 722, 728 (5th Cir. 1996), cert. denied, ___ U.S. ___ , 115 S.Ct. 408, 136

L.Ed.2d 321 (1996).

Rivera contendsthat the district court abused its discretion by failing to follow the procedures

governing an upward departure fromthe sentencing guidelines. More specifically, Rivera argues that

when the district court is deciding to upwardly depart, U.S.S.G. 4A1.3, requires it to first consider

adjusting the defendant’s criminal history category to the next higher category, thus taking into

account an intermediate criminal history category as a possible sentence. Moreover, the district court

must state for the record that it has contemplated the intermediate category, explain why the criminal

historycategoryas calculated under the guidelinesisinappropriate, and then explainwhythe category

the court utilizes is appropriate. 

As a general rule, “a district court is not . . . a slave to the guideline grids; it may depart

upward or downward from the sentence range specified by the guidelines when it finds ‘an

aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines that should result in a

sentence different from that described.’” United States v. Lambert, 984 F.2d 658, 660 (5th Cir.

1993). 

In Lambert, the defendant pled guilty to escaping from a federal halfway house. In its presentence report (“PSR”), the probation department suggested that the defendant’s sentence might

deserve an upward departure from the guidelinesrange because his criminal history category tended

to understate the seriousness o f his criminal history or potential for recidivism. Following the
9

 In McKenzie, 991 F.2d at 203, the probation officer calculated the defendant’s criminal history category

to be a Category IV and the total offense level to be 14, thus yielding a sentencing range of 27 to 33 months’

imprisonment. However, the PSR also referred to other criminal conduct by the defendant that had not been

adjudicated and was not part of his criminal history score. The PSR included a dismissed charge of possession of a

weapon, a charge of possession of cocaine with the intent to deliver, as well as pending charges of possession of

marijuana with intent to sell, possession of a controlled dangerous substance, and conspiracy, possession, possession

with the intent to distribute, and distributing a controlled dangerous substance. Neither party objected to the PSR.

At the sentencing hearing, the district court concluded that McKenzie’s criminal history score inadequately reflected

his past criminal behavior and likely recidivism and imposed a sentence of 60 months’ imprisonment.

7

recommendation in the PSR, the district court sentenced the defendant to 36 months’ imprisonment,

twice the maximum term allowed under the sentencing guideline. On appeal, we held that a district

court considering upward departure based upon the failure of a criminal history score to adequately

reflect a defendant’s history must evaluate sentence ranges for each criminal history category above

defendant’s assigned category and explain why it chose that particular sentencing range rather than

the sentencing range associated with the lower criminal history score. 984 F.2d at 662.

However, we also stated that “we do not . . . require the district court to go through a ritualistic

exercise in which it mechanically discusses each criminal history category it rejects en route to the

category it selects.” Id. at 663. In reaching this conclusion, we acknowledged that the “district

court’s reasons for rejecting intermediate categories will clearly be implicit, if not explicit, in the

court’s explanation for its depart ure from the category calculated under the guidelines and its

explanation for the category it has chosen appropriate.” Id. Thus, though we embraced a specific

procedure for use in upward departure, we also stated that failure to strictly comply with that

procedure will not be penalized by this court. 

Furthermore, in United States v. McKenzie, 991 F.2d 203 (5th Cir. 1993),9 we found that the

district court did not abuse its discretion and adequately stated its reasons for upward departure
10 The court stated, in pertinent part, “Mr. McKenzie, the court hasreviewed this presentence report and the

record in this case. The court has also looked again at the provisions of Section 4A1.3 of the sentencing guidelines.

And the court is of the view that your criminal record in the past does not accuratelyreflect or reflected in the guideline

sentence as it’s calculated in the standard method here, that is, that the criminal history category that was given you

here based, on these normal, standard calculations doesn’t adequately reflect and give credit for your past criminal

conduct. The court is of the view that based on your history, criminal history as set out in the presentence report that

there is a very good likelihood that you will commit other offenses if you’re not appropriately punished here. And the

court is of the view that term is a very good likelihood that you will commit other offenses if you are not appropriately

punished here. And the court is of the view that your criminal conduct is certainly more proportional to a higher

category -- criminal history category, that is, a category 5 or 6 than the one that is contained in the basis calculations.”

8

when it restated the defendant’s criminal history as contained in his PSR.10 Id. at 205-06. In that

case, we noted that although the district court’srationale for departing could have been more explicit,

we were satisfied that the court’s stated reasons, when read in light of the record as a whole,

“presents a basis upon which we may reasonably conclude that the district court thoroughly

considered the appropriate guidelinesin arriving at its ultimate sentence.” Id. at 205. We concluded

that “ it is not clear what else the court could have said to explain its sentence other than to repeat

the various factors in the defendant’s criminal history for which the guidelines did not account.” Id.

See also United States v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc), cert. denied, ___ U.S.

____, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995). 

After several futile attempts to resolve Rivera’s sentencing dilemma which lasted for more

than one year, the district court announced itsintention to depart upward on August 9, 1995. Rivera,

however, was not sentenced until May 1, 1996. In articulating the reasons for its upward departure,

the district court observed that Rivera’s past was far more violent than the two offenses listed in

Rivera’s PSR indicated. The court noted that Rivera’s PSR also included several episodes of violent

conduct including a 1979 incident where Rivera shot a man in the face resulting in a conviction of

assault with the intent to murder; his entering a junior high school in 1987 and “grab[bing]” juveniles

and the principal; and a 1989 conviction for resisting arrest. The court also noted that various
9

criminal charges were pending against Rivera including an aggravated-assault incident in 1993 where

Rivera allegedly stabbed his wife; another resisting arrest incident in 1993; and Rivera’s alleged

shooting of a fellow bar patron on the day he was arrested for the offenses charged in the instant case.

In deciding to depart, the court stated:

This is a man with a very violent past here. Because of the nature of the way the guidelines

are written with regards to prior convictions, the guidelines can’t go as high as they should

based u[pon] this fact situation. And as far as this court is con[cerned], based on the nature

of the offense here, . . . the possession of a weapon that fitsthe description ofthe weapon that

was used, allegedly used the same night to shoot at an individual and seriously wound and

possibly could have killed [sic] him.

. . . .

The court has looked at its options here with regards to departures. The guidelines that

would apply, the criminal history that might apply here, and the nature of the repeated types

of violations here, and the Court is going to go ahead and depart, and the Court is going to

depart to a sentence of five years in this case.

I’ve considered all of the options, the applicable guidelines here, and I consider this the

appropriate departure here. That’s still giving him the benefit of the doubt for the fact that

he has not been convicted for some of these charges. But his behavior and the type of offense

involved in this case and his prior record lead this Court to believe that it has to depart and

it has to impose this sentence.

Despite the district court’sfailure to adhere strictly to the procedure provided for in Lambert

and explicitly announce its step by step consideration of each of the intermediate steps, no error

occurred. The state of the record in this case allows us to firmly conclude that the court rejected the

intermediate steps between the recommended sentencing range of 15-21 months and the 60 months’

imprisonment imposed by the court because they inadequately reflected Rivera’s criminal history,

pending charges, and propensity for violent conduct. As we stated in Lambert, we will not place the

district courts in a state of servitude and bind them to a step-by-step analysis for upward departure.
10

We conclude that based upon the unique circumstances presented by this record, the district court

did not abuse its discretion in departing upward and sentencing Rivera to 60 months’ imprisonment,

a sentence which is still far below the statutory maximum sentence of 180 months.

II. SEPARATION OF POWERS

We generallyreview a defendant’s constitutional challenges de novo. See, e.g., United States

v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995) (challenging verdict under Confrontation Clause)

cert. denied, 116 S. Ct. 1031 (1996).; United States v. Holley, 23 F.3d 902, 914 (5th Cir. 1994)

(challenging legality of restitution), cert. denied, 115 S.Ct. 635 (1994). However, we also note that

parties are required to challenge constitutional error in the district court. When a defendant in a

criminal case fails to object to a perceived error, he forfeits that error and this court’s ability to

remedy that error will be reserved for only the most exceptional cases. United States v. Calverley,

37 F.3d 160, 162 (5th Cir. 1994) (en banc), cert. denied, 115 S. Ct. 1266 (1995).

Under Fed. R. Crim. P. 52(b), this court may correct forfeited errors only when the appellant

shows that (1) there is an error, (2) that it is clear and obvious, and (3) that the error affects the

defendant’s substantial rights. Calverley, 37 F.3d at 162-64. If these factors are established, the

decision to correct the forfeited error is within the sound discretion of the court, which will not

exercise that discretion unless the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings. United States v. Olano, 507 U.S. at 725, 735-36 (1993).

Rivera contends, for the first time on appeal, that the district court committed constitutional

error by “handing over its Article III discretion to the Sentencing Commission” when it instructed

the pro bation officer to contact the Sentencing Commission regarding the interpretation of the

relevant conduct guideline and its application to Count II. Rivera argues this violation of the
11

constitutional doctrine of separation of powers constitutes a “structural defect” that requires

automatic reversal. We disagree.

Rivera has not sustained his burden of proof under Olano to show that there is actually an

error, thus our consideration of his argument can be brief. Rivera’s separation of powers claim is

factually baseless. The record belies his contention that the district court relied on the Sentencing

Commission’s advice. The court’s request that the probation office contact the Commission occurred

early in the many sentencing proceedings held in this case and concerned the court’s inclination to

hold Rivera responsible for his firearm possession under the “relevant conduct” guideline. In due

course, the court abandoned its inquiry, refused to dismiss the firearm count, and rejected Rivera’s

plea agreement. Ultimately, the court’s decision to depart upward rested on its determination that

the recommended guideline range did not adequately account for Rivera’s criminal history and

propensity for violence. Because the district court’s sentencing decision did not relate to the

Sentencing Commission inquiry, there was no error, plain or otherwise. Rivera’s argument that the

district court abrogated its Article III sentencing discretion in favor of the Sentencing Commission

is meritless.

III. DISTRICT COURT’S PARTICIPATION IN PLEA DISCUSSION

Rivera alleges that the district court violated Fed. R. Crim. P. 11(e) by participating in plea

negotiations. He asserts that the court “indicated over a number of sentencing hearings that it desired

a plea agreement that allowed it to impose [a] more severe punishment on the basis of the firearm

offense that was to have been dismissed.” Moreover, Rivera contends that the court “virtually told

[the parties] the plea agreement it desired when it posed in open court a number of questions for the

prosecution to answer about why it had not pursued the firearm charge.” Based upon these
12

allegations, Rivera argues that his “substantial rights” were affected in that he received a conviction

for a second felony and a higher sentence.

Generally, we review the procedures articulated in Rule 11 of the Federal Rules of Criminal

Procedure under the harmless error standard. United States v. Watch, 7 F.3d 422, 428 (5th Cir.

1993) (citing United States v. Johnson, 1 F.3d 296 (5thCir. 1993) (en banc)). We have held that “no

failure in the plea colloquy -- regardless of whether it might be one of omission or commission, total

or partial, core or non-core -- will mandate an automatic reversal of a conviction or a vacatur of a

sentence. Rather, reversal and vacatur will be required when -- but only when -- the challenged

‘variance fromthe proceduresrequired by [Rule 11] . . . affect[s]substantialrights’ ofthe defendant.”

Id. However, since Rivera raises the claim that the district court violated Rule 11(e) for the first time

on appeal, the claim is subject to plain error review. See Calverley, 37 F.3d at 162.

Rule 11(e) provides that the attorney for the government and the attorney for the defendant,

or the defendant himself when acting pro se, may engage in discussions with a view towardsreaching

a plea agreement. Under the rule, “the court shall not participate in . . . [plea negotiation]

discussions. Thus, under Rule 11(e), a district court is free to reject a plea agreement and may

express its reasons for doing so. United States v. Gustus, 10 F.3d 1135, 1139 (5th Cir. 1993). But

it is absolutely prohibited from “all forms of judicial participation in or interference with the

negotiation plea process.” Id.

In the instant case, Rivera contends that his substantial rights were affected by virtue of the

district court questioning the government about its failure to pursue the firearm charge. According

to Rivera, the district court “told defense counsel and the prosecutor the plea agreement it desired.”
13

However, after a thorough review of the record, we find no evidence in support of Rivera’s

contention. Accordingly, we reject this argument.

For the foregoing reasons, we AFFIRM.