USA v. Juan Silva-Gaytan

Filing

UNPUBLISHED OPINION FILED. [09-50941 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 10/04/2010 for Appellant Juan Pablo Silva-Gaytan [09-50941]

USA v. Juan Silva-Gaytan

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Case: 09-50941

Document: 00511231552

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 . 09-50941 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. J U A N PABLO SILVA-GAYTAN, 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 Western District of Texas U S D C No. 2:09-CR-169-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* J u a n Pablo Silva-Gaytan (Silva) appeals a 46-month within-guidelines s e n te n c e imposed following his guilty plea for illegal re-entry after deportation, a violation of 8 U.S.C. § 1326(a). During the sentencing hearing, the district c o u r t stated that "the Sentencing Commission and Congress made a d e t e r m in a t io n " that Silva's prior alien transportation offense "justified a 16le v e l" increase in his offense level. Further, the court stated, "I don't believe it's t h e place of the Court to second guess those determinations." Silva 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50941

Document: 00511231552 Page: 2 No. 09-50941

Date Filed: 09/13/2010

t h a t this statement shows the district court treated the Sentencing Guidelines a s mandatory. B e c a u s e Silva failed to preserve the issue with an objection in the district c o u r t, we review his claim for plain error only.1 To demonstrate plain error, S ilv a must show a forfeited error that is clear or obvious and that affects his s u b s t a n t ia l rights.2 If he makes such a showing, this court has the discretion to r e m e d y the error but only if it "seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings." 3 H e r e , the district court made no obvious error. It is true, as appellant p o in ts out, that the Guidelines are not mandatory and are only one factor to c o n s id e r during sentencing.4 Further, a district court should not presume the G u id e lin e s are reasonable.5 However, the court in this case did not act as

t h o u g h the Guidelines were mandatory. While the court chose not to "second g u e s s " the Guidelines, it also found that "policy reasons obviously support" the d e c is io n of Congress and the Sentencing Commission to recommend a 16-level e n h a n c e m e n t for a prior alien transportation offense. In addition, the district c o u r t concluded the Guidelines were "appropriate" for Silva in light of the factors e n u m e r a t e d in 18 U.S.C. § 3553(a). The court specifically noted that Silva was in t e llig e n t and with "a good family," yet he did not "regard our immigration laws a s laws that he needs to obey." The court's consideration of these other factors

See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), cert. denied, 130 S. Ct. 192 (2009).
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Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Id. (internal citations omitted). Gall v. United States, 532 U.S. 38 (2007). Nelson v. United States, 129 S. Ct. 890, 892 (2009) (per curiam).

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d e m o n s t r a t e s that it did not err in presuming the Guidelines to be mandatory o r reasonable.6 E v e n if Silva could establish that the district court treated the Guidelines a s mandatory, he cannot show that this error affected his substantial rights. The district court never expressed a desire to sentence Silva to anything less t h a n 46 months. It found that Silva "deserves a bottom of the guideline

s e n te n c e ." Thus, Silva cannot show "a reasonable probability that, but for the d is t r ic t court's error," he "would have received a lower sentence." 7 A F F IR M E D .

See United States v. Mauskar, 557 F.3d 219, 236 (5th Cir. 2009), cert. denied 129 S. Ct. 2756 (finding the district court did not treat the Guidelines as mandatory where the court explicitly declined to impose a below-Guidelines sentence in reliance on the factors set forth in 18 U.S.C. § 3553(a)).
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United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).

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