USA v. Salvador Gonzalez

Filing

UNPUBLISHED OPINION FILED. [09-41140 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 10/05/2010 for Appellant Salvador Gonzalez [09-41140]

USA v. Salvador Gonzalez

Doc. 0

Case: 09-41140

Document: 00511233098

Page: 1

Date Filed: 09/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41140 S u m m a r y Calendar September 14, 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. S A L V A D O R GONZALEZ, also known as Juan, also known as Tocayo, 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. 7:08-CR-419-3

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A jury convicted Salvador Gonzalez on one count of conspiracy to possess w it h intent to distribute drugs. The district court sentenced Gonzalez to a w it h in -g u id e lin e s sentence of 235 months of imprisonment and a five-year term o f supervised release. Gonzalez filed a timely notice of appeal. G o n z a le z challenges the procedural reasonableness of his sentence. He c o n t e n d s that the district court failed to consider the 18 U.S.C. § 3553(a) s e n te n c in g factors, failed to adequately explain its choice of sentence in light of
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-41140

Document: 00511233098 Page: 2 No. 09-41140

Date Filed: 09/14/2010

h is mitigating arguments, and treated the Sentencing Guidelines as mandatory. Gonzalez did not raise any of these specific arguments in the district court. Thus, under the law of this circuit, which we may not overrule absent en banc c o n s id e r a t io n or a superseding Supreme Court decision, see United States v. L ip s c o m b , 299 F.3d 303, 313 n.34 (5th Cir. 2002), our review is for plain error o n ly . See United States v. Mondragon-Santiago, 564 F.3d 357, 361 & n.2 (5th C ir . 2009). T h e sentencing transcript explicitly refutes Gonzalez's contention that the d is t r ic t court failed to consider the § 3553(a) factors at all. Gonzalez's other a r g u m e n t s are also unavailing. The statement of reasons signed by the district c o u r t indicates the court's acknowledgment that the Guidelines were advisory o n ly , and one of the factors for consideration under 18 U.S.C. § 3553(a) is the g u id e lin e s range itself. Gonzalez has not shown that, rather than merely

c o n c lu d in g that a sentence within the guidelines range was appropriate under § 3553(a), the district court treated the guidelines as mandatory. In addition, G o n z a le z has not shown that his substantial rights would have been affected by a n y error by the district court in explaining his sentence, as Gonzalez has not s h o w n that any further explanation by the district court would have changed his s e n te n c e . See Mondragon-Santiago, 564 F.3d at 365. A F F IR M E D .

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