United States v. Bergeron Court of Appeals Decision

 

United States Court of Appeals Fifth Circuit

FILED

December 21, 2017

Lyle W. Cayce

Clerk

 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17-30280

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

WADE BERGERON,

Defendant-Appellant

 

Appeal from the United States District Court for the Western District of Louisiana

USDC No. 6:16-CR-32-1

 

Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.

 

PER CURIAM:*

 

Wade Bergeron pleaded guilty pursuant to a plea agreement to a single

count of deprivation of rights under color of law. Pursuant to U.S.S.G. § 5K1.1,

the district court sentenced Bergeron below the advisory guideline range to 48

months of imprisonment. Bergeron appeals his sentence, arguing that the

district court committed procedural error by failing to conduct an

individualized inquiry into his case and by failing to state the basis for 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.

 

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downward departure. He also contends that the sentence is substantively

unreasonable.

To preserve error, Bergeron was required “to alert the district court to

the nature of the alleged error and to provide an opportunity for correction.”

United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Bergeron did not

object to the district court’s alleged procedural error. Therefore, we review for

plain error. To show plain error, the appellant must show a forfeited error that

is clear or obvious and that affects his substantial rights. Puckett v. United

States, 556 U.S. 129, 135 (2009). If the appellant makes such a showing, this

court has the discretion to correct the error but only if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

The record shows that the district court made an individualized

assessment of the facts presented based on appropriate sentencing factors. See

Gall v. United States, 552 U.S. 38, 50 (5th Cir. 2007); see also United States v.

Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Moreover, the record

shows that the district court was aware of its discretionary authority to

evaluate the defendant’s case and make its own § 5K1.1 determination,

irrespective of the Government’s § 5K1.1 motion. cf. United States v. Johnson,

33 F.3d 8, 10 (5th Cir. 1994). Bergeron has not shown error, plain or otherwise,

in the district court’s imposition of the sentence. See Puckett, 556 U.S. at 135.

As for Bergeron’s challenge to the substantive reasonableness of his

sentence, “[d]istrict courts have almost complete discretion to determine the

extent of a departure under § 5K1.1.” United States v. Hashimoto, 193 F.3d

840, 843 (5th Cir. 1999). A defendant can appeal the extent of such a departure

only it if was imposed in violation of the law. Id.; see also United States v.

Desselle, 450 F.3d 179, 182 (5th Cir. 2006). However, “we do not review the

district court's decision to limit a § 5K1.1 departure for reasonableness,” absent

 

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a challenge to the sentence as a violation of the law. See United States v.

Malone, 828 F.3d 331, 342 (5th Cir. 2016). Bergeron does not argue that the

district court’s departure sentence was imposed in violation of the law, or that

it was based on the consideration of non-assistance-related factors. Therefore,

his reasonableness challenge is unavailing. See id.; see also Hashimoto, 193

F.3d at 843.

AFFIRMED.