UNITED STATES v. MALDONADO GONZALEZ (2019)

Julio Cesar Maldonado-Gonzalez filed a 28 U.S.C. § 2255 motion challenging the sentence imposed upon his conviction for conspiracy to distribute and to possess with the intent to distribute methamphetamine and was sentenced to 188 months of imprisonment. The district court granted Maldonado-Gonzalez’s § 2255 motion, vacated his sentence, and ordered resentencing. At the resentencing proceeding, the district court sentenced Maldonado-Gonzalez within the guidelines range to 151 months of imprisonment. He appeals.

Maldonado-Gonzalez argues that under Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), the district court plainly erred in imposing his sentence by failing to indicate that it had considered evidence of his postsentencing rehabilitative efforts. As he acknowledges, his failure to object on this ground in the district court results in plain-error review. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).

To show the requisite plain error, Maldonado-Gonzalez must demonstrate a clear or obvious forfeited error that affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he makes that showing, this court “should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Rosales-Mireles v. United States, ––– U.S. ––––, 138 S. Ct. 1897, 1905, 201 L.Ed.2d 376 (2018) (quoting Molina-Martinez v. United States, ––– U.S. ––––, 136 S. Ct. 1338, 1340, 194 L.Ed.2d 444 (2016)).

Maldonado-Gonzalez has not shown that any error was clear or obvious because, though Pepper permits a district court to consider postsentencing rehabilitative conduct, it is not clear that Pepper mandates consideration of such conduct. See Pepper, 562 U.S. at 490, 131 S.Ct. 1229; United States v. Warren, 720 F.3d 321, 326–27 (5th Cir. 2013).

Accordingly, the district court’s judgment is AFFIRMED.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.