from the United States District Court for the Northern
District of Texas
REAVLEY, HAYNES, and COSTA, Circuit Judges.
HAYNES, Circuit Judge:
appeal of a criminal sentence, Defendant Ismael Rico
challenges the application of two enhancements to his base
offense level and the denial of a reduction for acceptance of
responsibility. For the following reasons, we AFFIRM.
Ismael Rico pleaded guilty to conspiracy to possess with
intent to distribute a controlled substance. In Rico's
presentence investigation report ("PSR"), the
probation officer assessed a base offense level of
thirty-eight. The PSR also applied a two-level adjustment
under United States Sentencing Guideline
("U.S.S.G.") § 2D1.1(b)(1) because the offense
involved a firearm; a two-level adjustment under U.S.S.G.
§ 2D1.1(b)(5) because the methamphetamine that Rico
distributed had been imported; and a two-level adjustment
under U.S.S.G. § 2D1.1(b)(12) on the basis that Rico
maintained a premises for the purpose of distributing a
controlled substance. Following a
three-level reduction under U.S.S.G. § 3E1.1 for
acceptance of responsibility, The PSR calculated Rico's
total offense level as forty-one. That total offense level,
combined with a criminal history category of III, yielded a
guidelines imprisonment range of 360 months to life. But
because the statutory maximum prison term was forty years,
the guidelines range became 360 to 480 months. See
21 U.S.C. §§ 841(b)(1)(B), 846; U.S.S.G. §
5G1.1(a); U.S.S.G. Ch. 5, Pt. A.
sentencing, the district court denied the reduction for
acceptance of responsibility, but otherwise adopted the PSR,
resulting in a Guidelines range of 480 months due to the
statutory maximum. The district court sentenced Rico to 400
months in prison and a four-year term of supervised release.
review the interpretation of the Guidelines de novo and
factual findings for clear error. United States v.
Serfass, 684 F.3d 548, 550 (5th Cir. 2012). There is no
clear error where the district court's finding is
plausible in light of the record as a whole. United
States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.
2008) (per curiam).
first issue on appeal, Rico challenges the two-level
enhancement he received for importation of methamphetamine
under U.S.S.G. § 2D1.1(b)(5). More specifically, he
maintains that the information in the PSR was insufficient to
support a finding that the methamphetamine was from Mexico.
Where a defendant has intentionally relinquished or abandoned
a known right, the issue is waived. United States v.
Olano, 507 U.S. 725, 733 (1993). Because Rico waived
this objection, we cannot address it. See United States
v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995)
("Waived errors are entirely unreviewable, unlike
forfeited errors, which are reviewable for plain
objections to the PSR, Rico contested that the
methamphetamine was imported from Mexico. By his written
objections, Rico essentially made two arguments: (1) he did
not know the origin of the methamphetamine, and thus his base
offense level could not be enhanced and (2) the information
contained in the PSR was insufficient to support the
enhancement because it was unreliable. Prior to the
sentencing hearing, the district court entered an order
tentatively concluding that Rico's objections were
without merit. The district court stated that it was
"advising the parties of such tentative conclusion so
that it can be taken into account by the parties in
determining what presentations to make at the sentencing
sentencing hearing, the district court asked Rico whether he
"still want[ed] to pursue any of those objections."
Counsel for Rico responded in the affirmative, but chose to
pursue some, but not all, of the objections. He stated that,
as to the importation enhancement, "that's a legal
objection as to the standard used by the Fifth Circuit.
We're simply making that objection to preserve it for
later appeal." Counsel further conceded that he
"agree[d] that . . . as the law stands now, that is
a proper finding." (emphasis added). Indeed, when
the court clarified whether "the issue is whether or not
the law should be that the increase should not be applicable
if he doesn't know it came from Mexico, " counsel
responded, "Yes, Your Honor." This exchange shows
that, although Rico knew of his objection based on
insufficient information, he consciously decided to forgo
that objection at sentencing. Instead, he limited his
objection to the standard applied by this circuit and
acknowledged the enhancement was proper under that precedent.
Accordingly, he waived his objection. See Musquiz,
45 F.3d at 931.
maintains that the tentative ruling was sufficient to
preserve the issue on appeal. We disagree. The ruling was
only a tentative one, intended to assist the parties in
preparing for sentencing. Contrary to Rico's suggestion,
it was not meant to discourage pursuing objections; indeed,
the district court began the sentencing hearing by explicitly
asking Rico if he wanted to pursue any of his objections.
Again, Rico did so, but did not pursue all of them.
Accordingly, this is not a ...