USA v. Castillo-Mendoza

Filing 920090831

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-51225 Summary Calendar August 31, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. PEDRO CASTILLO-MENDOZA Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:08-CR-334-ALL

Before DAVIS, BARKSDALE, and GARZA, Circuit Judges. PER CURIAM:* Pedro Castillo-Mendoza, a citizen of Mexico, pleaded guilty to a one-count indictment charging him with illegal reentry into the United States, in violation of 8 U.S.C. § 1326. His advisory Guidelines' sentencing range was calculated to be 77 to 96 months; and he was sentenced, inter alia, to 77 months' imprisonment. Castillo does not challenge the calculation of his sentencing

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51225 range; instead, he claims the 77-month sentence imposed is substantively unreasonable. In that regard, Castillo urges his sentence is substantively unreasonable because the district court could not consider a claimed sentencing disparity resulting from the absence of a "fast-track" early-disposition program. Castillo correctly acknowledges that this issue is foreclosed by United States v. Gomez-Herrera, 523 F.3d 554, 563 & n.4 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Castillo also urges his sentence is substantively unreasonable because: the district court did not adequately consider his motives for returning to the United States; the Guidelines give too much weight to his criminal history; and his within-Guidelines sentence overstates the seriousness of his offense conduct. Our court normally "considers the `substantive reasonableness of the sentence imposed under an abuse-of-discretion standard'". United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)). Moreover, "[i]f the sentence is within the Guideline range, the appellate court may . . . apply a presumption of reasonableness". Gall, 128 S. Ct. at 597. (We need not decide whether Castillo's requests, in district court, for a below-Guidelines sentence preserved review for

reasonableness under the usual abuse-of-discretion, vice plain-error, standard, because his sentence is affirmed under either standard. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).) The district court explained that it determined the within-Guidelines, 77month sentence to be "a fair and reasonable sentence" after considering the advisory Guidelines and their policy statements, the 18 U.S.C. § 3553(a) factors, Castillo's allocution, and the factual information contained in the presentence investigation report. The district court: acknowledged that the advisory

sentence was "a pretty healthy sentence"; but stated that it was particularly troubled by the serious nature of Castillo's numerous prior offenses, including 2

No. 08-51225 burglary of a habitation, attempted burglary of a habitation, forgery with intent to pass, aggravated robbery, robbery, and failure to appear. Castillo has not rebutted the presumption that his sentence is reasonable or otherwise established error. AFFIRMED.

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