### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 41642

UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v.

JUAN DUQUE

- TINOCO, also known as Rogelio Lopez

- Ruiz,

Defendant

- Appellant

---------------------------------------------------------------------------------------- consolidated with No. 15

- 41638

UNITED STATES OF AMERICA,

Plaintiff

– Appellee

v.

JUAN DUQUE

- TINOCO

Defendant

- Appellant

Appeal s from the United States District Court for the South ern District of Texas USDC No. 3:15

- CR

- 17

- 1

Before JOLLY, HIGGINBOT HAM, and GRAVES, Circuit Judges. United States Court of Appeals Fifth Circuit 

### FILED

Janu ary 23, 2017

Lyle W. Cayce Clerk Case: 15-41642 Document: 00513845500 Page: 1 Date Filed: 01/23/2017No. 15

- 41642 c/w No. 15

- 4163 8

2 PER CURIAM: *

Juan Duque

- Tinoco pleaded guilty to illegal reentry and was sentenced

to 37 months of imprisonment and three years of supervised release. His

supervised release imposed for a p r ior conviction was revoked, and he was

sentenced to 24 months of imprisonment. The sentences were ordered to run

consecutively. He challenges both sentences in these consolidated appeals.

As to the sentence for the new offense, Duque

- Tinoco argues that the

district court abused its discretion in departing upward pursuant to U.S.S.G.

§ 5K2.21 for uncharged conduct. The uncharged conduct the district court
relied on was the fact recounted in the Presentence Report that Duque

- Tinoco

was found in the United States during a traffic stop of a vehicle in which

officers discovered 2.2 kilograms of methamphetamine. Duque

- Tinoco argues

that the mere presence of the drugs in containers in a vehicle he was driving

does not establish he possessed the meth amphetamine

. He argues that the

Presentence Report does not provide much detail about the drugs including

their exact location in the vehicle or visibility.

Th e parties disagree about whether plain error applies to this argument,

but we need not resolve that dispute because the claim of error fails even under

the standard of review that applies when we review preserved challenges to

factual determinations. We c onclude that the district court did not clearly err

in finding, by a preponderance of the evidence, that Duque

- Tinoco committed

the uncharged conduct. See United States v. Koss, 812 F.3d 460, 466 (5th Cir.

2016).

* Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4. Case: 15-41642 Document: 00513845500 Page: 2 Date Filed: 01/23/2017No. 15

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3 Rejection of this argument in the context of the new illegal reentry case

also warrants rejecting Duque

- Tinoco’ s argument that any error in the district

court ’ s assessment of the uncharged conduct at that sentencing improperly

influenced the sentence in the revocation case.

Duque

- Tinoco raises a n additional argument challenging the revocation

sentence: that he was denied the opportunity to allocute

. He concedes that he

did not raise this objection in the district court. We have discretion to correct

a forfeited error only if the error is obviou s, affects the defendant ’ s substantial

rights, and undermines the fairness, integrity, or public reputation of judicial

proceedings. Puckett v . United States, 556 U.S. 129, 135 (2009).

The district court held the hearings in both of Duque

- Tinoco ’ s cases b ack

to

- back and only afforded a chance to alloc ute in the first hearing that dealt

with the new case. Not allowing allocution at the revocation hearing was a

clear error. See F ED

. R. C RIM

. P. 32. 1 (b)(2)(E); United States v . A v ila

- Cortez,

582 F.3d 602, 604

- 05 (5th Cir. 2009). Duque

- Tinoco ’ s substantial rights were

arguably affected because he was sentenced above the Guidelines range.

Av ila

- Cortez, 582 F.3d at 605. But given that the district court had just heard

Duque

- Tinoco allocute a f ew minutes earlier in connection with his sentence

for the new reentry offense that raised similar issues to the revocation

sentence, we decline to exercise our discretion to correct this error. See id . at
606 (explaining that “ if the defendant had a prio r opportunity to allocut e

. . . then the case is one of those ‘ limited class of cases ’ in which we will decline to

exercise our discretion to correct the error ” (quoting United States v . Reyna,

358 F.3d 344, 352 (5th Cir. 2004) (en ban c ))); see also United States v . Legg,

439 F. App’ x 312, 313 (5th Cir. 2011) (declining to correct the error because the

defendant’ s proposed allocution had already been considered and deemed

unpersuasive and did not undermine the district court’s reasons for imposing Case: 15-41642 Document: 00513845500 Page: 3 Date Filed: 01/23/2017No. 15

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- 4163 8

4 sentence) ; United States v. Coleman , 280 F. App’x 388, 392 (5th Cir. 2008)

(similar); United States v. Neal , 212 F. App’x 328, 332 (5th Cir. 2007) (similar).

The judgments of the district court are AFFIRMED. Case: 15-41642 Document: 00513845500 Page: 4 Date Filed: 01/23/2017