USA v. Abel Arevalo

Filing

UNPUBLISHED OPINION FILED. [09-20405 Affirmed] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 12/10/2010 for Appellant Abel Alfonso Arevalo [09-20405]

USA v. Abel ArevaloCase: 09-20405

Document: 00511299371 Page: 1 Date Filed: 11/19/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20405 S u m m a r y Calendar November 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A B E L ALFONSO AREVALO, also known as Alexander Eli Arevalo, also known a s Abel Alfonso Arevaldo, also known as Abel Arevalo, also known as Abel A. A r e v a lo , also known as Ableabel Alfonso Arevalo, also known as Alexander A r e v a lo , D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:08-CR-806-1

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* A b e l Alfonso Arevalo appeals the sentence imposed following his guilty p le a conviction for being unlawfully present in the United States following r e m o v a l. The district court sentenced Arevalo to 70 months of imprisonment, t h e lowest sentence within the guidelines sentence range.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-20405 Document: 00511299371 Page: 2 Date Filed: 11/19/2010 No. 09-20405 F o r the first time on appeal, Arevalo argues that the district court did not p r o v id e sufficient reasons for the sentence. Because Arevalo did not object to the d is t r ic t court's failure to explain the sentence, he acknowledges that plain error r e v ie w applies. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5 t h Cir.), cert. denied, 130 S. Ct. 192 (2009). Arevalo argues that the district court erred by not providing more detailed r e a s o n in g for the sentence because he raised numerous nonfrivolous arguments fo r a downward departure or variance from the guidelines sentence range. Based on our review of the sentencing hearing and the remainder of the s e n te n c in g record, we conclude that the district court's comments at sentencing w e r e sufficient. Arevalo is correct that under Rita v. United States, 127 S.Ct. 2 4 5 6 (2007), when a district court is presented with nonfrivolous arguments for a sentence outside the guidelines more than a brief statement of reasons is r e q u ir e d even if the court imposes a sentence within the guidelines. However, R ita and our cases following Rita make clear that much less than a full d is c u s s io n is required. In Rita, "the Court noted that the record made clear that t h e judge listened to and considered the arguments and evidence but simply fo u n d the circumstances insufficient to warrant a sentence below the Guidelines r a n g e ." United States v. Gomez-Herrera, 523 F.3d 554, 565 (5th Cir. 2008). The ju d g e 's comments regarding the sentence were limited to a statement that the guideline range was not `inappropriate' and that a sentence at the bottom of the r a n g e was `appropriate.' Rita, 127 S.Ct. at 2469. Although the Court a c k n o w le d g e d that the judge might have said more, he was not required to do s o . Id. I n this case, the district court at sentencing heard the defendant's and his a t t o r n e y 's arguments for a sentence below the guideline range. They argued t h a t most of his criminal history was due to his drug addiction, that he was c u ltu r a lly assimilated in the United States, that he returned to the United S t a te s because El Salvador was plagued with persecution and gang violence 2

Case: 09-20405 Document: 00511299371 Page: 3 Date Filed: 11/19/2010 No. 09-20405 w h ic h involved the threat of physical injury, that he had a plan to relocate to El S a lv a d o r with his wife, that he had survived an abusive childhood that resulted in untreated depression, that he provided guidance to his sister's children, that h is remote 2001 conviction was responsible for the 16-level enhancement that s ig n ific a n t ly raised his guidelines sentence range, and that the sentence was far lo n g e r than any sentence he had previously received. Arevalo also argued that h e should get credit for his time in immigration custody. The government r e c o m m e n d e d a sentence at the low end of the guideline range, but addressing t h e sentencing factors pointed out that Arevalos's lengthy criminal history in v o lv e d drugs, guns and burglary. The government also addressed the factor o f deterrence because of Arevalos's extensive family in the United States and the d r a w to return again once he is deported after serving his sentence. The

p r o b a t i o n office recommended a sentence in the mid-range due to Arevalos's c r im in a l record. After questioning the defendant about his family situation and c a r e e r , the district court stated that although he liked the defendant on a p e r s o n a l level he was disturbed by his record. The arguments and the judge's c o m m e n ts addressed several sentencing factors, including the history and c h a r a c t e r is t ic s of the defendant, and the need for adequate deterrence. 18 U .S .C . § 3553(a). In addition, when the defendant raised the issue of his time in immigration custody, the court stated that he used the bottom of the g u id e lin e s for that reason. The court's statements, though minimal, provide a s u ffic ie n t basis for appellate review and satisfy the standard set in Rita. Even if the district court erred by failing to explain why it had rejected A r e v a lo 's nonfrivolous arguments for a sentence below the guidelines range, as A r e v a lo acknowledges, he cannot show that an explanation would have affected h is sentence. Therefore, he cannot show that the error affected his substantial r ig h t s or constituted reversible plain error. See Mondragon-Santiago, 564 F.3d a t 363-64, 365.

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Case: 09-20405 Document: 00511299371 Page: 4 Date Filed: 11/19/2010 No. 09-20405 A re v a lo also argues that the sentence was substantively unreasonable. He m a in t a in s that a presumption of reasonableness should not apply to his within g u id e lin e s range sentence because the Guideline upon which it was based, U .S .S .G . § 2L1.2, is not empirically based. As Arevalo acknowledges, this

a r g u m e n t is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th C ir .), cert. denied, 130 S. Ct. 378 (2009); Mondragon-Santiago, 564 F.3d at 3 6 6 -6 7 . Because Arevalo did not object to the substantive reasonableness of the s e n te n c e , plain error review applies. See United States v. Peltier, 505 F.3d 389, 3 9 1 -9 2 (5th Cir. 2007). Acknowledging that a presumption of reasonableness applies, United S ta te s v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), Arevalo asserts that the p r e s u m p t io n is rebutted by the facts and circumstances of this case. Citing p r im a r ily cases from the Ninth Circuit, Arevalo argues that the presumption of r e a s o n a b le n e s s has been rebutted because of the same factors that he relied on in his argument for a sentence below the guideline range. While Arevalo

p r o v id e d significant mitigating evidence, his substantial criminal record was an a g g r a v a t in g factor. The district court had before it both mitigating and

a g g r a v a t in g factors and implicitly balanced these factors and determined that a sentence at the low end of the guidelines range was appropriate. Considering t h e totality of the circumstances, as we must, see Gall v. United States, 552 U.S. 3 8 , 51 (2007), Arevalo has not shown that the sentence was unreasonable or p la in ly erroneous. See Rita, 551 U.S. at 359-60; Peltier, 505 F.3d at 392-94. A F F IR M E D .

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