USA v. Gustavo Maldonado-Olivares

Filing

UNPUBLISHED OPINION FILED. [09-41258 Affirmed ] Judge: RHB , Judge: JLD , Judge: PRO. Mandate pull date is 11/19/2010 for Appellant Gustavo Maldonado-Olivares [09-41258]

USA v. Gustavo Maldonado-Olivares Case: 09-41258

Document: 00511279389 Page: 1 Date Filed: 10/29/2010

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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 . 09-41258 S u m m a r y Calendar October 29, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. G U S T A V O MALDONADO-OLIVARES, D e fe n d a n t - Appellant

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-1220-1

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* P r o c e e d in g in forma pauperis, Gustavo Maldonado-Olivares appeals his w it h in -G u id e lin e s sentence of 70 months' imprisonment, following his guiltyp le a conviction, for being knowingly and unlawfully present in the United States fo llo w in g deportation, in violation of 8 U.S.C. §§ 1326(a) and (b). Maldonado c o n t e n d s his sentence was procedurally unreasonable because the district court: (1) erroneously based his sentence on finding there was no proof he illegally r e e n te r e d the United States as a result of his father's alleged murder, and (2)
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41258 Document: 00511279389 Page: 2 Date Filed: 10/29/2010 No. 09-41258 fa ile d to adequately explain his sentence in the light of his assertions in favor of a lower sentence. He further maintains his sentence was substantively

u n r e a s o n a b le because the district court improperly weighed the sentencing fa c t o r s , set forth in 18 U.S.C. § 3553(a), by discounting his mitigation claim that h e feared for his life after the murder of his father. Maldonado contends that, e v e n if a presumption of reasonableness applies to his within-Guidelines s e n te n c e , he rebutted the presumption. A r g u a b ly , Maldonado's procedural objections should be reviewed only for p la in error because he arguably failed to raise a specific procedural objection in d is t r ic t court. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th C ir . 2009). Along that line, in district court, Maldonado raised two objections: the court failed to adequately explain the sentence, and it was greater than n e c e s s a r y under § 3553(a). Maldonado objected on various grounds; but,

a r g u a b ly , his objections were not based on any procedural grounds. See id. For p la in -e r r o r review, Maldonado must show, inter alia, a clear or obvious error a ffe c t in g his substantial rights. E.g., Puckett v. United States, 129 S. Ct. 1423, 1 4 2 9 (2009). T h is claim fails under either the ordinary or plain-error standard of r e v i e w . Under the former, it was not clear error for the court to discount M a ld o n a d o 's claim regarding why he illegally reentered the United States, b e c a u s e there was no proof his father was killed by a gang in Mexico or that this w a s Maldonado's reason for entry. Under the latter, such questions of fact "can n e v e r constitute plain error". United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1 9 9 5 ) (internal quotations and citation omitted). Even assuming the district c o u r t erred by failing to adequately explain the sentence, Maldonado has not s h o w n reversible error. M a ld o n a d o 's substantive-unreasonableness claim is reviewed for abuse of d is c r e t io n . Mondragon-Santiago, 564 F.3d at 360. Although post-Booker, the S e n te n c in g Guidelines are advisory only, the district court must still properly 2

Case: 09-41258 Document: 00511279389 Page: 3 Date Filed: 10/29/2010 No. 09-41258 c a lc u la t e the guideline-sentencing range for use in deciding on the sentence to im p o s e . Gall v. United States, 552 U.S. 38, 50-51 (2007). In that respect, its a p p lic a t io n of the Guidelines is reviewed de novo; its factual findings, only for c le a r error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2 0 0 8 ); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). When, as h e r e , the district court imposes a sentence within a properly-calculated g u id e lin e s range, we accord great deference to the sentence and apply a r e b u t t a b le presumption of reasonableness. Gall, 552 U.S. at 51-52; United S ta te s v. Newson, 515 F.3d 374, 379 (5th Cir. 2008). T h e district court did not abuse its discretion in weighing the § 3553(a) fa c t o r s . Rather, the record reflects the court heard and considered Maldonado's c o n t e n t io n s in favor of a lesser sentence but implicitly found they did not w a r r a n t a lesser sentence in the light of his criminal history, and given the lack o f evidence that he fled Mexico because he feared for his life after his father's a lle g e d murder. Moreover, the district court expressly stated it considered the § 3553(a) factors and determined a within-Guidelines sentence satisfied those fa c to r s . B a s e d on the district court's stated reasons, we are satisfied it considered t h e assertions presented and had "a reasoned basis for exercising [its] own legal d e c is io n making authority". Rita v. United States, 551 U.S. 338, 356 (2007). The d is t r ic t court considered the totality of the circumstances in the light of the § 3553(a) factors in imposing the sentence. In any event, Maldonado's

d is a g r e e m e n t with his sentence does not suffice to show error in connection with t h e sentence imposed. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5 t h Cir.), cert. denied, 129 S. Ct. 624 (2008); United States v. Rodriguez, 523 F .3 d 519, 526 (5th Cir. 2008). Accordingly, he has failed to rebut the

p r e s u m p t io n of reasonableness that attaches to his within-Guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).

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Case: 09-41258 Document: 00511279389 Page: 4 Date Filed: 10/29/2010 No. 09-41258 M a ld o n a d o contends the presumption of reasonableness should not apply t o sentences under Guideline § 2L1.2 because the Guideline is "penalogically fla w e d " . Conceding this argument is foreclosed by our precedent, he raises it in o r d e r to preserve it for possible further review. See Mondragon-Santiago, 564 F .3 d at 366. AFFIRMED.

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