USA v. Esteban Rodriguez-Lopez

Filing

UNPUBLISHED OPINION FILED. [09-41146 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 10/04/2010 for Appellant Esteban Rodriguez-Lopez [09-41146]

USA v. Esteban Rodriguez-Lopez

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Case: 09-41146

Document: 00511231110

Page: 1

Date Filed: 09/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41146 S u m m a r y Calendar September 13, 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. E S T E B A N RODRIGUEZ-LOPEZ, 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. 5:09-CR-1451-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Esteban Rodriguez-Lopez appeals his 77-month s e n te n c e following his guilty plea conviction for illegal reentry following previous d e p o r t a t io n . Rodriguez-Lopez asserts that the district court plainly erred in a s s e s s in g him two criminal history points under U.S.S.G. § 4A1.1(d) because he d id not commit the instant offense "while under a criminal justice sentence." He in s is t s that the error affected his substantial rights because without the two

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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c r im in a l history points he would have faced a guideline imprisonment range of 6 3 to 78 months, instead of 77 to 96 months. To show plain error, Rodriguez-Lopez must show a forfeited error that is c le a r or obvious and that affects his substantial rights. Puckett v. United States, 1 2 9 S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the

d is c r e t io n to correct the error but only if it seriously affects the fairness, in t e g r it y , or public reputation of judicial proceedings. Id. At the time Rodriguez-Lopez reentered the United States on June 10, 2 0 0 9 , there was no evidence that he was under a "criminal justice sentence" w it h in the meaning of § 4A1.1(d). Thus, the district court erred in applying the t w o criminal history points, and the error is obvious. See Puckett, 129 St. at 1429. There is nothing in the record, however, to indicate "a reasonable

p r o b a b ilit y " that the district court would resentence Rodriguez-Lopez to a lower s e n te n c e . See United States v. Jones, 596 F.3d 273, 277 (5th Cir. 2010), petition fo r cert. filed (May 5, 2010) (No. 09-10607). In fact, the district court denied R o d r ig u e z -L o p e z 's request for a below-guidelines sentence. Accordingly,

R o d r ig u e z -L o p e z has failed to show that his substantial rights were affected by t h e district court's error. See Jones, 596 F.3d at 277; Puckett, 129 S. Ct. at 1429. Rodriguez-Lopez also contends that (1) the district court committed s ig n ific a n t procedural error in its consideration and weighing of the 18 U.S.C. § 3553(a) factors, and (2) the sentence imposed was substantively unreasonable.

Following United States v. Booker, 543 U.S. 220 (2005), we review s e n te n c e s for reasonableness in light of the sentencing factors in § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall v . United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the s e n te n c e imposed by the district court. United States v. Delgado-Martinez, 564 F .3 d 750, 752 (5th Cir. 2009). First, we consider whether the district court c o m m it t e d a significant procedural error. Gall, 552 U.S. at 51. If there is no 2

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s u c h error, we then review the substantive reasonableness of the sentence im p o s e d for abuse of discretion. Id. Here, after hearing arguments from both parties, the district court briefly b u t amply stated its reasons for choosing a within-guidelines sentence. See U n ite d States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008); Rita v. United S ta te s , 551 U.S. 338, 356-59 (2007). Rodriguez-Lopez is essentially asking us to s u b s t it u t e his assessment of the appropriate sentence for that of the district c o u r t , which we will not do. See Gall, 552 U.S. at 51. He has not established t h a t the district court abused its discretion in imposing his sentence, and he has n o t rebutted the presumption of reasonableness that attaches to his withing u id e lin e s sentence. See id.; United States v. Campos-Maldonado, 531 F.3d 337, 3 3 8 (5th Cir. 2008). Rodriguez-Lopez has failed to show that the sentence is u n r e a s o n a b le . See Gall, 552 U.S. at 51; Rita, 551 U.S. at 346-47. The sentence is thus AFFIRMED.

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