USA v. Ever Fuentes-Lopez

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USA v. Ever Fuentes-Lopez

Doc. 0

Case: 09-51100

Document: 00511195042

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 . 09-51100 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. E V E R RENE FUENTES-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 Western District of Texas U S D C No. 2:08-CR-1073-1

B e fo r e GARWOOD, PRADO and HAYNES, Circuit Judges. P E R CURIAM:* E v e r Rene Fuentes-Lopez appeals his December 2009 sentence of twentys e v e n months of imprisonment, following his guilty plea conviction to illegal r e e n tr y into the United States. He argues, as he did in the district court, that t h e sentence, which exceeded his guideline range of fifteen to twenty-one months u n d e r the United States Sentencing Commission's Guidelines Manual

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511195042 Page: 2 No. 09-51100

Date Filed: 08/05/2010

(S e n t e n c in g Guidelines or Guidelines), is greater than necessary to satisfy the s e n te n c in g goals of 18 U.S.C. § 3553(a).1 W e review sentences, whether inside or outside the Sentencing Guidelines r a n g e , under the abuse of discretion standard for procedural error and s u b s t a n t iv e reasonableness. Gall v. United States, 128 S.Ct. 586, 596-97 (2007). Fuentes does not argue that the district court committed any procedural error, s o we need only review the substantive reasonableness of his sentence. See id. " A sentence is unreasonable if it (1) does not account for a factor that s h o u ld have received significant weight, (2) gives significant weight to an ir r e le v a n t or improper factor, or (3) represents a clear error of judgment in b a la n c in g the sentencing factors." United States v. Peltier, 505 F.3d 389, 392 (5 t h Cir. 2007) (internal quotation marks and citation omitted). In reviewing a n o n -G u id e l in e s sentence for substantive unreasonableness the review is for a b u s e of discretion. Gall at 597-98. We consider the totality of the

c ir c u m s t a n c e s , including the extent of any variance from the Guidelines range. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). When determining w h e t h e r or not the Section 3553(a) factors support the sentence, we give d e fe r e n c e to a district court's determination that they support a non-Guidelines s e n te n c e . Id.

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18 U.S.C. § 3553(a) provides, in relevant part:

"(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-- (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed-- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . ." 18 U.S.C.A. § 3553(a) (West 2000).

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Date Filed: 08/05/2010

F u e n t e s argues that his non-Guidelines sentence is substantively u n r e a s o n a b le because the Sentencing Guidelines adequately accounted for his p r io r criminal history. However, in United States v. Booker, 125 S.Ct. 738 (2 0 0 5 ), the Supreme Court held that the Sentencing Guidelines were not m a n d a t o r y . In doing so, it implicitly rejected the position that a sentencing c o u r t departing from the Guidelines under Section 3553(a) could give no a d d it io n a l weight to factors included in calculating the Guidelines range, since t o do otherwise would essentially render the Guidelines mandatory. United S ta te s v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). "[T]he sentencing court is fr e e to conclude that the applicable Guidelines range gives too much or too little w e ig h t to one or more factors, and may adjust the sentence accordingly under § 3 5 5 3 (a )." United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008) (in t e r n a l quotation and citation omitted). Therefore, we find that Fuentes's a r g u m e n t is without merit. The district court's oral and written reasons reflect that the court c o n s id e r e d the Guidelines, the policy statements, and the Section 3553(a) fa c t o r s , including the nature and circumstances of the offense of conviction, F u e n t e s 's history and characteristics, and the need for the sentence to provide a d e q u a t e deterrence and to protect the public from further criminal conduct by F u e n t e s . Specifically, the district court stated that: " T h e Court finds that the advisory guidelines are not adequate; that t h e defendant's true assaultive behavior that he has reflected in the c r im in a l history is not properly considered, the seriousness of his c h a r a c t e r is t ic s , his history; therefore, making this not the particular a p p lic a t io n of the guidelines to this case, not taking into account the s e r io u s n e s s of the case, because one of them is the categorization of h o w we consider the prior convictions. The Court finds for that r e a s o n and the need to protect the public and to provide a just s e n t e n c e that the guidelines are not adequate in this case. Even t h o u g h all the criminal history convictions technically counted in p o in t s , they don't adequately reflect the seriousness of this d e fe n d a n t 's characteristics."

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Document: 00511195042 Page: 4 No. 09-51100

Date Filed: 08/05/2010

O n this record, we see nothing to indicate that the court (1) did not account for a factor that should have received significant weight, (2) gave significant weight t o an irrelevant or improper factor, or (3) made a clear error of judgment in b a la n c in g the sentencing factors. Although the court gave a non-Guidelines

s e n te n c e , the extent by which the court varied from the Guidelines range was r e la t iv e ly minor. Cf. Brantley, 537 F.3d at 348­50 (upholding a variance of more t h a n 250% from the guideline range). Accordingly, we hold that the district court did not abuse its discretion. The sentence imposed "was reasonable under the totality of the relevant s t a t u t o r y factors". Brantley, 537 F.3d at 349 (internal quotation omitted). See a ls o Lopez-Velasquez, 526 F.3d at 807 (upholding an non-Guidelines sentence b a s e d on the nature and characteristics of the defendant and his criminal h is t o r y ). We affirm the judgment of the district court. A F F IR M E D .

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