USA v. Manuel Alvarez

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USA v. Manuel Alvarez

Doc. 0

Case: 09-20850

Document: 00511209884

Page: 1

Date Filed: 08/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20850 S u m m a r y Calendar August 20, 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. M A N U E L DE JESUS PEREZ ALVAREZ, also known as Manuel Jesus Perez, a ls o known as Manuel Perez, also known as Manuel De Jesus Perez-Alvarez, 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-380-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* M a n u e l de Jesus Perez Alvarez appeals the 48-month sentence imposed fo llo w in g his conviction for illegal reentry. Alvarez argues that the sentence was p r o c e d u r a lly unreasonable because the district court did not adequately explain it s reasons for the sentence. He also contends that his sentence was

s u b s t a n t iv e ly unreasonable because it overstates the seriousness of his offense, w h ic h he characterizes as "an international trespass." Alvarez further contends

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-20850

Document: 00511209884 Page: 2 No. 09-20850

Date Filed: 08/20/2010

t h a t he had good motives for reentering to the United States, because he r e t u r n e d to see his mother and his child. He also argues that the district court's s e n te n c e did not take into account his personal history and characteristics. B e c a u s e Alvarez did not object to his sentence, this court's review is for p la in error. See United States v. Peltier, 505 F.3d 389, 391­92 (5th Cir. 2007). To demonstrate plain error, Alvarez must show an error that is clear or obvious a n d that affects his substantial rights. See United States v. Baker, 538 F.3d 324, 3 3 2 (5th Cir. 2008). If Alvarez makes such a showing, this court will correct s u c h an error only if it seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings. Id. T h is court recognizes three different types of sentences: (1) a withing u id e lin e s sentence, (2) an upward or downward departure under the G u id e lin e s , and (3) a non-Guidelines sentence or "variance" that is outside of the g u id e lin e range. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Although the parties' briefs reflect uncertainty as to the type of sentence im p o s e d , the district court's written Statement of Reasons (SOR) makes clear t h a t the district court upwardly departed under U.S.S.G. § 4A1.3(a)(4)(B) based o n the inadequacy of Alvarez's criminal history category. The SOR shows that A lv a r e z was sentenced within the guideline range of 46­51 months that resulted fr o m the upward departure. T h e district court thoroughly articulated fact-specific reasons for its s e n te n c e that were consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a). These reasons included Alvarez's extensive criminal history, his p r o p e n s it y for violence, and the district court's determination that it was n e c e s s a r y to separate Alvarez from society so that he would not cause additional h a r m . The district court listened to Alvarez's argument that he was a changed p e r s o n , but it rejected that argument, noting that Alvarez continued to act ir r e s p o n s ib ly . Alvarez has not shown plain error in the district court's

e x p la n a t io n for its sentence. See Baker, 538 F.3d at 332. 2

Case: 09-20850

Document: 00511209884 Page: 3 No. 09-20850

Date Filed: 08/20/2010

B e c a u s e Alvarez was sentenced within the guideline range, the district c o u r t's sentence is entitled to a presumption of reasonableness. See United S ta te s v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Alvarez has failed to

o v e r c o m e the presumption of reasonableness that attaches to such a sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United S ta te s v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Nor has Alvarez s h o w n plain error with regard to the issue of the substantive reasonableness of t h e sentence. See Baker, 538 F.3d at 332. The judgment of the district court is AFFIRMED.

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