United States v. Diego Gamarra ( 2020 )

Case: 18-40855 Document: 00515489975 Page: 1 Date Filed: 07/15/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40855
FILED
July 15, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
DIEGO GAMARRA,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:17-CR-8-2
Before JOLLY, HO, and ENGELHARDT, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:*
Diego Gamarra appeals his conviction and sentence for coercing and
enticing a minor to engage in criminal sexual activity. Gamarra contends that
the district court erred by: (1) failing to advise him of the nature of the charge
in violation of Rule 11(b)(1)(G) of the Federal Rules of Criminal Procedure; (2)
increasing his offense level under U.S.S.G. § 2G1.3(b)(2)(B) for unduly
influencing the minor victim to engage in prohibited sexual conduct; (3)
declining to reduce his offense level under U.S.S.G. § 3B1.2 for his claimed role
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40855 Document: 00515489975 Page: 2 Date Filed: 07/15/2020
No. 18-40855
as a minor or minimal participant in the offense; and (4) failing to orally
pronounce the special conditions of supervised release at sentencing.
Gamarra’s assertion that the district court violated Rule 11(b)(1)(G) by
failing to advise him of the nature of the charge, raised for the first time on
appeal, is reviewed for plain error only. See United States v. Broussard, 669
F.3d 537, 546 (5th Cir. 2012). Gamarra failed to allege, much less to establish,
that there is a reasonable probability that he would not have pleaded guilty
but for this purported Rule 11 error. He has therefore failed to show reversible
plain error. See id.
Gamarra’s other claims challenging the two alleged sentencing
guidelines errors were preserved, but he has not shown that the district court
clearly erred in either applying the § 2G1.3(b)(2)(B) undue influence
enhancement or refusing to apply the § 3B1.2 mitigating role adjustment. See
United States v. Ruiz-Hernandez, 890 F.3d 202, 211 (5th Cir. 2018). Gamarra
has failed to demonstrate that the district court’s findings that he unduly
influenced the minor victim to engage in criminal sexual activity and that he
was not less culpable than most of the other participants in the offense are not
plausible in light of the record as a whole. See id. at 211―12.
Finally, Gamarra complains that the district court failed to orally
pronounce the special conditions of supervised release included in his written
judgment. Gamarra did not object when the district court orally adopted the
conditions outlined in the presentence report (PSR), which included the 12
conditions he now challenges. Consequently, plain error review applies.
United States v. Diggles, 957 F.3d 551, 559―60, 563 (5th Cir. 2020) (en banc).
Because the district court’s oral adoption of the conditions in the PSR satisfied
the court’s pronouncement obligations to the extent it was required to do so,
2
Case: 18-40855 Document: 00515489975 Page: 3 Date Filed: 07/15/2020
No. 18-40855
Gamarra does “not clear even the first of the four plain-error hurdles for there
was no error at all.” Id. at 560.
The judgment of the district court is AFFIRMED.
3