USA v. Carlos Molina
UNPUBLISHED OPINION FILED. [10-20828 Affirmed ] Judge: JLW , Judge: EMG , Judge: EBC Mandate pull date is 08/11/2011 for Appellant Carlos Moreno Molina [10-20828]
Date Filed: 07/21/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
July 21, 2011
Lyle W. Cayce
UNITED STATES OF AMERICA,
CARLOS MORENO MOLINA, also known as Carlos Molina-Moreno, also known
as Jose Benjamin Garcia Vega, also known as Ciberio Vega Garcia, also known
as Ceberio Vega Garcia, also known as Ceberio Vega-Garcia, also known as Jose
Benjamin Vega-Garcia, also known as Ruben Ramirez, also known as Jose Bega,
also known as Hector Gonzalez Moreno, also known as Benjamin Garcia, also
known as Benjamin Vega Garcia, also known as Benjamin Vega, also known as
Beta Benjermino, also known as Beta Benjamin, also known as Benjamin Beta,
also known as Benjermino Beta,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-485-1
Before WIENER, GARZA, , and CLEMENT, Circuit Judges.
Defendant-Appellant Carlos Moreno Molina appeals the 60-month
sentence he received for reentering the United States as a previously deported
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 07/21/2011
alien after conviction for an aggravated felony. Molina asserts that the district
court procedurally erred in upwardly departing from the guidelines range of 18
to 24 months under U.S.S.G. § 4A1.3(a)(1) to a sentence commensurate with
offense level 17 and criminal history category VI without explaining why it
rejected intermediate criminal history categories.
We review the issue for plain error. See Puckett v. United States, 129 S.
Ct. 1423, 1428-29 (2009).
Although Molina objected to the sentence as
procedurally unreasonable in the district court on the ground that the court
failed to provide sufficient reasons for the departure, he did not identify as error
the district court’s failure to address the intervening criminal history categories.
The district court’s failure to address the intermediate criminal history
categories was not a clear or obvious error. It is apparent from the court’s
reasons that it imposed the 60-month sentence to protect the public and deter
Molina from committing further crimes. See United States v. Ashburn, 38 F.3d
803, 809-10 (5th Cir. 1994) (en banc); United States v. Lambert, 984 F.2d 658,
663-64 (5th Cir. 1993) (en banc); United States v. Zuniga-Peralta, 442 F.3d 345,
348 & n.2 (5th Cir. 2006); United States v. Simkanin, 420 F.3d 397, 419 (5th Cir.
2005). Moreover, even if it were clear or obvious error, Molina has not shown
that it affected his substantial rights. Nothing in the record indicates that the
district court would have imposed a lesser departure if it had explicitly
addressed the lower criminal history categories or that the court would not have
simply imposed the 60-month sentence as a variance. Accordingly, we find no
plain error. See Puckett, 129 S. Ct. at 1429.
Molina also challenges the extent of the departure. The district court cited
several reasons for the sentence. It found Molina’s criminal conduct over a 25year period to be consistent and significant and correctly noted that his
criminality had not slowed with age. Based on the facts of several of his
offenses, the court found that Molina presented a danger to the community when
“cornered, provoked, [or] annoyed” due to his lack of common sense. The court
Date Filed: 07/21/2011
also emphasized his conduct in reentering the United States only two weeks
after his most recent deportation.
The district court’s reasons for the departure appropriately reflect Molina’s
history and characteristics and the need for the sentence to promote respect for
the law, deter future criminal conduct, and protect the public from further
criminal acts by him. See 18 U.S.C. § 3553(a). The court did not abuse its
discretion in determining that the 60-month sentence was appropriate. See
United States v. Rajwani, 476 F.3d 243, 250-51 (5th Cir.), modified on other
grounds by, 479 F.3d 904 (5th Cir. 2007).
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