USA v. Rolando Roel-Villagomez

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USA v. Rolando Roel-Villagomez

Doc. 0

Case: 09-41222

Document: 00511195370

Page: 1

Date Filed: 08/05/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41222 S u m m a r y Calendar August 5, 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. R O L A N D O ROEL-VILLAGOMEZ, also known as Alejandro Roel-Villagomez, 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. 7:09-CR-1172-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* R o la n d o Roel-Villagomez appeals his sentence of 37 months'

im p r is o n m e n t , imposed following his guilty-plea conviction for being an alien fo u n d unlawfully in the United States after having previously been removed. See 8 U.S.C. § 1326. He contends: the district court committed procedural error b y failing to explain sufficiently its reasons for rejecting his request for a d o w n w a r d variance from the advisory Guideline sentencing range; and, his s e n te n c e is substantively unreasonable.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41222

Document: 00511195370 Page: 2 No. 09-41222

Date Filed: 08/05/2010

A lt h o u g h post-Booker, the Sentencing Guidelines are advisory only, and a n ultimate sentence is reviewed for reasonableness under an abuse-ofd is c r e t io n standard, the district court must still properly calculate the guidelines e n te n c in g range for use in deciding on the sentence to impose. Gall v. United S ta te s , 552 U.S. 38, 50­51 (2007). In that respect, its application of the

G u i d e lin e s is reviewed de novo; its factual findings, only for clear error. E.g., U n ite d States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United S ta te s v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Accordingly, pursuant to Gall, 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". Id. at 752-53. If there is no such e r r o r , we then review the substantive reasonableness of the sentence imposed fo r an abuse of discretion. Id. at 751-53. "[A] sentence within a properly United States v.

c a lc u la t e d Guideline range is presumptively reasonable". A lo n z o , 435 F.3d 551, 554 (5th Cir. 2006).

" [W ]h e n a judge decides simply to apply the Guidelines to a particular c a s e , doing so will not necessarily require lengthy explanation". Rita v. United S ta te s , 551 U.S. 338, 356 (2007). The requirement that the district court explain it s sentence may be satisfied by the district court's listening to the parties' c o n t e n t io n s and then indicating that a sentence within the Guidelines range is a p p r o p r ia te . Id. at 357-59. Here, the district court heard Roel's contentions, r e je c t e d them, and stated that a sentence within the advisory Guidelines range s a t is fie d the factors of 18 U.S.C. § 3553(a). Accordingly, the district court's e x p la n a t io n of the sentence, although brief, was legally sufficient. See Rita, 551 U .S . at 358-59. F o r substantive reasonableness, as noted, "[a] discretionary sentence im p o s e d within a properly calculated Guidelines range is presumptively r e a s o n a b le " . United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), 2

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Document: 00511195370 Page: 3 No. 09-41222

Date Filed: 08/05/2010

c e r t denied, 129 S. Ct. 328 (2008). That this court "might reasonably have c o n c lu d e d that a different sentence was appropriate is insufficient to justify r e v e r s a l of the district court." Gall, 552 U.S. at 51. Roel has presented "no r e a s o n to disturb" the presumption of reasonableness in this case. See United S ta te s v. Rodriguez, 523 F.3d 519, 526 (5th Cir.), cert. denied, 129 S. Ct. 624 (2 0 0 8 ). A F F IR M E D .

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