USA v. Jose Varela

Filing

UNPUBLISHED OPINION FILED. [09-51123 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/16/2010 for Appellant Jose Arturo Varela [09-51123]

USA v. Jose Varela Case: 09-51123

Document: 00511275539 Page: 1 Date Filed: 10/26/2010

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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 . 09-51123 S u m m a r y Calendar October 26, 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 O S E ARTURO VARELA, 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-985-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* J o s e Arturo Varela appeals his 97-month sentence following his guilty plea c o n v ic t io n for one count of possession of child pornography, in violation of 18 U .S .C . § 2252A(a)(5)(B). Varela contends that his within-guidelines sentence is u n r e a s o n a b le . Specifically, Varela argues that the district court should have g iv e n minimal weight to the Sentencing Guidelines because the Guideline for p os s e s s io n of child pornography1 is not based on empirical evidence and produces
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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U.S.S.G. § 2G.2.

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Case: 09-51123 Document: 00511275539 Page: 2 Date Filed: 10/26/2010 No. 09-51123 s e n te n c e s that exceed what are necessary to meet the sentencing goals set forth in 18 U.S.C. § 3553(a)(2). He further argues that the district court erroneously c o n c lu d e d that he lacked remorse and failed to consider factors that supported a below-guidelines sentence. I n reviewing a sentence, we consider the substantive reasonableness of the s e n te n c e using an abuse-of-discretion standard.2 A district court "abuses its d i s c r e t i o n if it bases its [sentencing] decision on an error of law or a clearly e r r o n e o u s assessment of the evidence."3 Moreover, we may presume a withinG u id e lin e s sentence is reasonable.4 When the district court imposes a sentence w it h in a properly calculated guidelines range and gives proper weight to the G u id e lin e s and § 3553(a) factors, this court gives "great deference to that s e n te n c e and will infer that the judge has considered all the factors for a fair s e n te n c e ." 5 I n this case, the district court considered Varela's argument that the G u id e lin e s for child pornography were arbitrary and not based on empirical d a t a . The court concluded that based on the deliberation of Congress and the S u p r e m e Court's approval, the Guidelines were satisfactory. However, the court a ls o noted it could take the nature of the Guidelines into account under § 3553(a) s h o u ld such consideration be appropriate. T h e district court heard arguments from both sides regarding Varela's p e r s o n a l characteristics, criminal offense, and the § 3553(a) sentencing factors. The court concluded that Varela's circumstances were insufficient to warrant a

Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). United States v. Smith, 417 F.3d 483, 486-87 (5th Cir. 2005) (internal quotation marks omitted).
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Rita v. United States, 551 U.S. 338, 347 (2007).

United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (internal quotation marks and citation omitted).

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Case: 09-51123 Document: 00511275539 Page: 3 Date Filed: 10/26/2010 No. 09-51123 d o w n w a r d departure, especially given his limited allocution. Valera offered no r e a s o n for why he committed the crime, and the court found he was not r e m o r s e fu l. While he acknowledged "the hurt . . . about the girl [victim]," in the s a m e sentence he said, "if I can just say, I mean, you have no idea how much h u r t I'm also in." We recognize that Valera was not a native English speaker a n d addressed the court in English, which could have resulted in some stilted p h r a s in g . Nevertheless, we believe the district court was in the best position to a s s e s s Valera's sincerity in his allocution and also to consider how his impending d e p o r t a t io n should factor into the sentence. "The fact that the appellate court m ig h t reasonably have concluded that a different sentence was appropriate is in s u ffic ie n t to justify reversal of the district court."6 We also note other evidence t h a t may have led the district court to question Valera's sincerity. Defense c o u n s e l informed the court that Valera wished to seek therapy, but Valera had m a d e no efforts at the time of sentencing to obtain such help. After examining t h e record, we find nothing to support the contention that the district court c le a r ly erred in its assessment of the evidence. Applying the deferential abuse-of-discretion standard, we AFFIRM the s e n te n c e given below.

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Gall, 552 U.S. at 51.

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