USA v. German Sevilla

Filing

UNPUBLISHED OPINION FILED. [09-20704 Affirmed] Judge: PEH , Judge: HRD , Judge: JLD. Mandate pull date is 11/23/2010 for Appellant German Aguilar Sevilla [09-20704]

USA v. German Sevilla se: 09-20704 Ca

Document: 00511281502 Page: 1 Date Filed: 11/02/2010

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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 . 09-20704 S u m m a r y Calendar November 2, 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. G E R M A N AGUILAR SEVILLA, also known as German S. Aguillar, also known a s Hancy Sevilla, also known as Herman Sevilla Aguilar, also known as German S e v illa Aguillar, also known as German Aguilar-Sevilla, also known as German S . Aguilar, also known as Carlos Munoz, also known as Jose Americar, also k n o w n as German Aguilar, also known as German Sevilla Aguilar, 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. 4:09-CR-163-1

B e fo r e HIGGINBOTHAM, DeMOSS, and DENNIS, Circuit Judges. PER CURIAM:* G e r m a n Aguilar Sevilla pleaded guilty of illegal reentry following d e p o r t a t io n and he has appealed his sentence, which involved an upward d e p a r t u r e from the advisory guidelines sentencing range. Sevilla argues that " t h e district court committed a procedural error in equating the factors applied

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-20704 Document: 00511281502 Page: 2 Date Filed: 11/02/2010 No. 09-20704 in the sentencing guidelines with the sentencing factors set forth in 18 U.S.C. § 3553(a)." Sevilla contends that the district court considered the Guidelines o n ly in determining the sentence, and that it failed to consider the other § 3553(a) factors. He contends, "[b]y finding that the sentencing guidelines s e n te n c in g factor encompassed all seven of the statutory sentencing factors u n d e r § 3553(a), when the sentencing guidelines are but one of the seven § 3553(a) factors, the district court presumed that the Guidelines range was a r e a s o n a b le sentence under § 3553(a)." Because Sevilla's arguments were not r a is e d below in such a manner so that the district court could correct itself, our r e v ie w is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 3 5 7 , 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). S e v illa argues correctly that the district court may not apply a p r e s u m p t io n of correctness to the advisory guidelines sentence. See Nelson v. U n ite d States, 129 S. Ct. 890, 892 (2009). "Instead, the sentencing court must fir s t calculate the Guidelines range, and then consider what sentence is a p p r o p r ia te for the individual defendant in light of the statutory sentencing fa c t o r s ." Id. at 891-92; see also Gall v. United States, 552 U.S. 38, 49-50 (2007). I n stating that the guidelines "adequately address[ed] all statutory s e n te n c in g factors," the district court did not expressly apply a presumption of c o r r e c t n e s s to the guidelines sentence, and there is no basis for concluding that it did so. The record reflects that the district court departed upward from the a d v is o r y guidelines range after expressly giving consideration to Sevilla's c r im in a l history and individual characteristics. See § 3553(a)(1). The court n o te d specifically that Sevilla had many more criminal history points than were n e c e s s a r y to attain Criminal History Category VI, that several of Sevilla's prior c o n v ic t io n s had involved violent offenses, and that there were several unscored o ffe n s e s . The court noted that Sevilla had been deported numerous times. Thus, t h e district court implicitly considered the seriousness of the offense and the n e e d for the sentence to promote respect for the law, to provide just punishment 2

Case: 09-20704 Document: 00511281502 Page: 3 Date Filed: 11/02/2010 No. 09-20704 fo r the offense, to deter additional criminal conduct, and to protect the public fr o m further crimes. See § 3553(a)(2). In determining the extent of its

d e p a r t u r e , the district court properly considered incremental steps along the s e n te n c in g table. See U.S.S.G. § 4A1.3(a)(4)(B). Sevilla has not shown that the d is t r ic t court committed any error, plain or otherwise, in determining the s e n te n c e . See Mondragon-Santiago, 564 F.3d at 361. Accordingly, the judgment o f the district court is AFFIRMED.

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