Case: 09-40607 Document: 00511327162 Page: 1 Date Filed: 12/20/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 20, 2010
                                     No. 09-40607
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LEOBARDO VILLARREAL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:05-CR-805-2


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Leobardo Villarreal appeals his convictions and sentences for attempted
carjacking in violation of 18 U.S.C. § 2119 and using and carrying a firearm
during and in relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii). Villarreal was sentenced to 151 months in prison for the
attempted carjacking conviction and to a consecutive sentence of 120 months for
the firearm conviction.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 09-40607

      Villarreal argues that the district court erred in not ordering his guilty
pleas withdrawn and in not ordering a hearing concerning his competency to
stand trial after it learned of his mental retardation diagnosis. He also argues
that his convictions on the attempted carjacking and firearm counts violated the
Double Jeopardy Clause, that the district court erred in refusing to decrease his
combined adjusted offense level for acceptance of responsibility, and that the
Government violated the plea agreement because it failed to recommend that his
offense level be decreased for acceptance of responsibility.
      Because Villarreal made no competency objection during the guilty plea
hearing and did not seek to withdraw his guilty plea in the district court, our
review is for plain error. See United States v. Vonn, 

, 59 (2002). The
record indicates that neither counsel nor the district court had any indication
that Villarreal was mentally incompetent at the time he entered his pleas or that
he did not understand the nature of the charges or the consequences of pleading
guilty. The guilty plea hearing record also indicates that Villarreal’s guilty plea
was knowing and voluntary. Although Villarreal may have been diagnosed with
mild mental retardation at the age of 12, he was only provisionally diagnosed as
such after the court-ordered psychological evaluation, and there was no
indication that Villarreal was not competent in fact at the time he entered his
guilty pleas. See Dusky v. United States, 

, 402 (1960); Holmes v.
King, 

, 967 (5th Cir. 1983). Accordingly, there was no obvious error
by the district court in not ordering the guilty pleas withdrawn and/or in not
ordering a competency hearing.
      Villarreal’s argument that his convictions for attempted carjacking and
using and carrying a firearm during and in relation to a crime of violence
violated the Double Jeopardy Clause is foreclosed by our precedent in United
States v. Singleton, 

, 1423-29 (5th Cir. 1994). In addition, we defer
to the district court’s decision not to award Villarreal an adjustment for
acceptance of responsibility because the district court’s decision was not without

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                                  No. 09-40607

foundation. See United States v. Cordero, 

, 630 (5th Cir. 2006);
United States v. Solis, 

, 458 (5th Cir. 2002). The district court
adopted the calculations in the presentence report (PSR) of Villarreal’s combined
adjusted offense level. The PSR correctly noted that Villarreal received an
adjustment to his attempted carjacking offense level for obstruction of justice,
and pursuant to the commentary to U.S.S.G. § 3E1.1, an enhancement to a
defendant’s offense level for obstruction of justice “ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct.” See § 3E1.1,
comment. (n.4).
      Villarreal’s assertion that the Government breached the plea agreement
by failing to move for acceptance of responsibility in this case is belied by the
record which confirms that the Government moved for acceptance of
responsibility.     Accordingly, Villarreal’s attempted carjacking and firearm
convictions and sentences are AFFIRMED.          To the extent that Villarreal’s
counsel is seeking to withdraw from representing Villarreal in connection with
any petition for a writ of certiorari before the United State Supreme Court, such
motion is DENIED as premature. See Fifth Circuit Plan under the Criminal
Justice Act, § 6.




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