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United States v. Castillo ( 2021 )


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  • Case: 20-50807     Document: 00515948699          Page: 1    Date Filed: 07/22/2021
United States Court of Appeals
for the Fifth Circuit                               United States Court of Appeals
Fifth Circuit
FILED
July 22, 2021
No. 20-50807
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Israel Castillo,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-46-1
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam: *
Israel Castillo pleaded guilty to possession, with intent to distribute,
50 grams or more of actual methamphetamine, in violation of
    21 U.S.C. § 841
    (a)(1) and (b)(1)(A).    He was sentenced to, inter alia, a within-
Sentencing Guidelines, statutory mandatory minimum sentence of 120-
months’ imprisonment. Castillo challenges the district court’s denial of a
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-50807      Document: 00515948699           Page: 2     Date Filed: 07/22/2021
No. 20-50807
safety-valve adjustment, including its failure to explain its reasons for
denying it.
Although post-Booker, the 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
    , 46, 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).
In contending, as he did in district court, that the court erred by not
applying the safety-valve provisions in
    18 U.S.C. § 3553
    (f), Castillo
challenges its finding he did not meet the criteria of § 3553(f)(5) by failing to
truthfully provide to the Government all information and evidence he had
“concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan”.
    18 U.S.C. § 3553
    (f)(5). The
record provides a valid basis for the decision not to apply the adjustment. See
United States v. Miller,
    179 F.3d 961
    , 969 (5th Cir. 1999) (noting defendant’s
“purported untruthfulness as to his knowledge of [underlying criminal
conduct] would justify the denial of the safety-valve reduction”).
Regarding compliance with § 3553(f)(5), Castillo provided the court
with a statement including his sale of methamphetamine to the
Government’s confidential source (CS). The statement, however, did not
include any information regarding his discussions, agreement, or plan to sell
the CS an additional seven pounds of methamphetamine. The presentence
investigation report (PSR) was adopted by the district court; and, because it
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Case: 20-50807       Document: 00515948699           Page: 3     Date Filed: 07/22/2021
No. 20-50807
contained a sufficient indicia of reliability, the court could use it to determine
whether Castillo truthfully provided all of the information and evidence
regarding the “same course of conduct” or “common scheme or plan”
under § 3553(f)(5). See United States v. Fitzgerald,
    89 F.3d 218
    , 223 (5th Cir.
1996)     (“A [PSR] generally bears sufficient indicia of reliability to be
considered as evidence by the sentencing judge in making factual
determinations required by the sentencing guidelines.”). Castillo has not
shown the court’s finding was clearly erroneous.
Castillo’s contesting the court’s failure to make specific findings of
untruthfulness in its denial of the safety-valve adjustment was not raised in
district court; therefore, review is only for plain error. E.g., United States v.
Broussard,
    669 F.3d 537
    , 546 (5th Cir. 2012). Under that standard, Castillo
must show a forfeited plain error (clear or obvious error, rather than one
subject to reasonable dispute) that affected his substantial rights. Puckett v.
United States,
    556 U.S. 129
    , 135 (2009). If he makes that showing, we have
discretion to correct the reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings”.
    Id.
    Castillo fails to show reversible plain error. Regardless of whether the
court articulated sufficient factual findings about his untruthfulness, Castillo
fails to show the requisite clear or obvious error, for the reasons discussed
above.
AFFIRMED.
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