USA v. Rodriguez

Filing 920070412


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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 12, 2007 Charles R. Fulbruge III Clerk No. 05-41146 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROBERTO GUZMAN RODRIGUEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:01-CR-1315-ALL -------------------Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Roberto Guzman Rodriguez was sentenced to an 18-month term of imprisonment following the revocation of a term of supervised release imposed as part of a 2001 sentence for possession of marijuana with intent to distribute. Rodriguez argues on appeal that his sentence constitutes plain error because it was based on an incorrect calculation of the advisory Sentencing Guidelines and further argues that the district court plainly erred by not specifically addressing the 18 U.S.C. 3553(a) factors during the sentencing hearing. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * No. 05-41146 -2To establish reversible plain error, Rodriguez must identify a clear or obvious error that affected his substantial rights. United States v. Olano, 507 U.S. 725, 731-37 (1993). Even if Rodriguez establishes these factors, we retain the discretion whether to correct the error and will generally do so only if the error "affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert. denied, 543 U.S. 1029 (2004). Although it is undisputed that Rodriguez's sentence is the result of a misapplication of the Sentencing Guidelines, he has failed to show that the error affected his substantial rights. Rodriguez's revocation sentence was within the three-year statutory maximum sentence authorized upon revocation. 18 U.S.C. 3583(e)(3); 21 U.S.C. 841(b)(1)(B)(vii). The district court determined that Rodriguez testified falsely at the sentencing hearing and that his self-serving testimony constituted perjury and obstruction of justice. It is See implicit from the court's comments at the sentencing hearing that the court considered the 3553(a) factors in arriving at an appropriate sentence. 3553(a); see United States v. Gonzalez, Rodriguez has therefore 250 F.3d 923, 930 (5th Cir. 2001). failed to demonstrate that his revocation sentence constitutes reversible plain error. Moreover, because the 24-month sentence United is within the statutory maximum, it was not unreasonable. States v. Boykin, No. 05-50704, 2006 WL 616031 at *1 (5th Cir.), No. 05-41146 -3cert. denied, 127 S. Ct. 153 (U.S. Oct. 02, 2006) (unpublished). AFFIRMED.

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