Case: 16-40777       Document: 00513859884         Page: 1     Date Filed: 02/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                     No. 16-40777                                FILED
                                   Summary Calendar                       February 2, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

EDGAR GONZALEZ-PINA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:15-CR-1153-6


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant Edgar Gonzalez-Pina was convicted of one count of
possession, with intent to distribute, more than 100 kilograms of marijuana,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Gonzalez pled guilty without a
plea agreement. He unsuccessfully sought a downward departure pursuant to
Guideline § 5K2.12 on the basis of his uncorroborated assertion that he had
been kidnapped, threatened at gunpoint, and forced to transport drugs into the


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 16-40777     Document: 00513859884      Page: 2   Date Filed: 02/02/2017


                                  No. 16-40777

United States. He was sentenced at the bottom of the advisory sentencing
range under the Sentencing Guidelines to 30 months’ imprisonment.
      Gonzalez presents two issues:         the Government made an improper
comment at sentencing regarding the truthfulness of Gonzalez’ duress claim;
and, as a result, the court erred in denying his downward-departure request.
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Because Gonzalez did not raise either issue in district court, review is
only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Gonzalez must show a forfeited, plain (clear
or obvious) error that affected his substantial rights. E.g., Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the reversible plain error, but should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”. Id. “Even
where the argument requires only extending authoritative precedent, the
failure of the district court to do so cannot be plain error.” United States v.
Evans, 587 F.3d 667, 671 (5th Cir. 2009) (internal quotation marks and
citations omitted).




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                                    No. 16-40777

      At sentencing, the court heard argument regarding Gonzalez’ request for
a § 5K2.12 duress-departure.        Gonzalez’ counsel reiterated his kidnapping
account. The Government responded, “we believe that the story as to how
[Gonzalez] got there is—is not truthful.        I’m of that opinion”.       Because
Gonzalez’ co-defendants “admitted to their involvement in this [offense] in
terms of being paid to smuggle marijuana”, the Government contended
Gonzalez was “an outlier” and there was nothing “to corroborate his—his story
of duress other than his self-serving statements”.           The court denied the
requested § 5K2.12 departure.
      “A prosecutor is confined in closing argument to discussing properly
admitted evidence and any reasonable inferences or conclusions that can be
drawn from that evidence.” United States v. Ceballos, 789 F.3d 607, 624 (5th
Cir. 2015) (emphasis added) (alteration and internal quotation marks omitted)
(quoting United States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013), cert.
denied, 134 S. Ct. 1514 (2014)). “Except to the extent the prosecutor bases any
opinion on the evidence in the case, he may not express his personal opinion
on the merits of the case or the credibility of witnesses.” Id. (internal quotation
marks omitted) (quoting United States v. Alaniz, 726 F.3d 586, 616 (5th Cir.
2013)). Here, however, the Government made the challenged comment at
sentencing after the guilty plea.
      Although Gonzalez challenges the Government’s comment at sentencing,
he relies exclusively on precedent governing comments to the jury during
closing argument. See, e.g., Ceballos, 789 F.3d at 624. Because he concedes
the lack of existing authority extending these trial standards to sentencing, he
fails to establish the requisite clear or obvious error for the purposes of our
plain-error review. See Evans, 587 F.3d at 671; United States v. Salinas, 480
F.3d 750, 756 (5th Cir. 2007).



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                                No. 16-40777

      Regarding Gonzalez’ second issue, we lack jurisdiction over a challenge
to the court’s determination that a § 5K2.12 departure was not warranted, and
Gonzalez fails to adequately brief any other procedural or substantive error in
connection with his sentence. See Alaniz, 726 F.3d at 627 (lack of jurisdiction
to determine unwarranted departure); United States v. Scroggins, 599 F.3d
433, 446–47 (5th Cir. 2010) (inadequate briefing).
      AFFIRMED.




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