USA v. Simon Mancera

Filing

UNPUBLISHED OPINION FILED. [10-20057 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 12/09/2010 for Appellant Simon Serrato Mancera [10-20057]

USA v. Simon Mancera se: 10-20057 Ca

Document: 00511298563 Page: 1 Date Filed: 11/18/2010

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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 . 10-20057 S u m m a r y Calendar November 18, 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. S I M O N SERRATO MANCERA, also known as Simon Mancera Serrato, also k n o w n as Simon Serrato, also known as Jose Zamora, also known as Simon S e r ra to-M a n c e r a , 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. 4:09-CR-441-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* S im o n Serrato Mancera appeals the 70-month sentence imposed following h is guilty plea conviction for being found unlawfully in the United States after d e p o r t a t io n and following a conviction for an aggravated felony in violation of 8 U .S .C . § 1326. He contends that his within-guidelines sentence is procedurally u n r e a s o n a b le because the district court failed to adequately explain the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20057 Document: 00511298563 Page: 2 Date Filed: 11/18/2010 No. 10-20057 s e n te n c e . Because Serrato Mancera did not object to the district court's failure t o adequately explain the sentence in the district court, plain error review a p p lie s . See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), c e r t. denied, 130 S. Ct. 192 (2009). Serrato Mancera concedes as much but seeks t o preserve for further review his contention that an objection is not required. T h e record reflects that the district court considered Serrato Mancera's m it ig a t io n arguments and ultimately concluded that a sentence at the bottom o f the applicable guidelines range was appropriate based on the circumstances o f the case and the 18 U.S.C. § 3553(a) factors. See Rita v. United States, 551 U .S . 338, 358-59 (2007). Nevertheless, even if this court were to conclude that t h e district court failed to adequately explain the sentence, Serrato Mancera has n o t shown that the error affected his substantial rights because there is no in d ic a tio n that a more thorough explanation would have changed his sentence. See Mondragon-Santiago, 564 F.3d at 365. Further, as Serrato Mancera

c o n c e d e s , this court has rejected his argument that the district court's failure to a d d r e s s his mitigation arguments deprived this court of the ability to conduct m e a n in g fu l appellate review. See id. Therefore, there is no reversible plain error. Serrato Mancera also contends that his within-guidelines sentence is s u b s t a n t i v e l y unreasonable because it is greater than necessary to satisfy the s e n t e n c in g goals of § 3553(a) and represents a clear error in judgment in b a la n c in g the sentencing factors. Specifically, he argues that the district court fa ile d to give proper weight to the mitigating facts underlying his prior c o n v ic t io n for indecency with a child, as well as the compelling family c ir c u m s t a n c e s that motivated his return to the United States. W h e n , as here, the district court imposes a sentence within a p r o p e r ly -c a lc u la t e d guidelines range, this court applies a presumption of r e a s o n a b le n e s s to the sentence, inferring that the district court considered the r e le v a n t sentencing factors. Rita, 551 U.S. at 347; United States v. 2

Case: 10-20057 Document: 00511298563 Page: 3 Date Filed: 11/18/2010 No. 10-20057 C a m p o s -M a ld o n a d o , 531 F.3d 337, 338 (5th Cir. 2008). Serrato Mancera asserts t h a t the lack of an empirical basis for § 2L1.2 precludes an appellate p r e s u m p t io n that his sentence is reasonable. However, as Serrato Mancera c o n c e d e s , this court has held that an appellate presumption of reasonableness c a n be applied "[e]ven if the Guidelines are not empirically-grounded." Mondragon-Santiago, 564 F.3d at 366. A s previously stated, the district court considered Serrato Mancera's m it ig a t io n arguments and ultimately concluded that a sentence at the bottom o f the applicable guidelines range was appropriate based on the circumstances o f the case and the § 3553(a) factors. Serrato Mancera's assertions that the facts s u r r o u n d in g his prior conviction and his motive for reentering the United States ju s tifie d a lower sentence are insufficient to rebut the presumption of r e a s o n a b le n e s s . See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th C ir . 2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Therefore, Serrato Mancera has not shown that his within-guidelines sentence is substantively unreasonable. F in a lly , Serrato Mancera contends that the district court erred by im p o s in g a 16-level crime of violence enhancement based on his prior Texas c o n v ic t io n for indecency with a child by contact, a violation of TEXAS PENAL CODE § 21.11(a)(1). He argues that the Texas conviction is not within the enumerated o ffe n s e of sexual abuse of a minor because an offense under § 21.11(a)(1) can be c o m m it t e d against a victim who is 16 years of age. As Serrato Mancera

c o n c e d e s , his argument is foreclosed by circuit precedent. See United States v. A y a la , 542 F.3d 494, 495 (5th Cir. 2008); United States v. Zavala-Sustaita, 214 F .3 d 601, 604 (5th Cir. 2000). Accordingly, the district court's judgment is A F F IR M E D .

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