USA v. Giovennie Barahona

Filing

UNPUBLISHED OPINION FILED. [10-30540 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 03/10/2011 for Appellant Giovennie Barahona [10-30540]

Case: 10-30540 Document: 00511385942 Page: 1 Date Filed: 02/17/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 10-30540
Summary Calendar

February 17, 2011
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
GIOVENNIE BARAHONA, also known as Orlin Geovannie Barahona-Ruis,
Defendant - Appellant

Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:09-CR-120-1

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Giovennie Barahona appeals the 120-month sentence imposed following
his guilty plea conviction of illegal reentry. He argues that the district court
improperly used his prior conviction for attempted first degree rape as a basis
for imposing an upward variance because that conviction had already been used
to increase his offense level, to increase his criminal history score, and to
increase the statutory penalty range applicable in this case. He contends that
this constitutes impermissible quadruple counting. He also argues that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

Case: 10-30540 Document: 00511385942 Page: 2 Date Filed: 02/17/2011
No. 10-30540
sentence imposed was excessive because it failed to take into account the
sentences imposed on similarly situated defendants.
This court reviews sentencing decisions for reasonableness, applying an
abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). This standard applies whether the sentence is within or
outside the Guidelines range. Id. Appellate courts must first ensure that the
district court did not commit procedural error. Gall v. United States, 128 S. Ct.
586, 597 (2007); Cisneros-Gutierrez, 517 F.3d at 764.
substantive

reasonableness,

this

court

considers

“the

When reviewing
totality

of

the

circumstances, including the extent of any variance from the Guidelines range.”
Gall, 128 S. Ct. at 597. Where, as in this case, the sentence is outside the
Guidelines range, the court may not apply a presumption of unreasonableness.
See id.
Barahona argues that the district court improperly based its decision to
impose a non-Guidelines sentence on his prior attempted rape conviction
because that conviction was adequately accounted for in the Guidelines range.
This argument is unavailing. See United States v. Williams, 517 F.3d 801, 811
& n.55 (5th Cir. 2008). Moreover, the record reflects that Barahona’s prior
conviction was not the only basis for the district court’s sentencing decision. The
district court also considered Barahona’s unlawful behavior after he illegally
reentered the United States.
The district court stated that in fashioning the sentence it considered the
Guidelines and the Section 3553(a) factors. The court concluded that a variance
was warranted based on the nature and circumstances of the offense and the
history and characteristics of Barahona, as well as the need to protect the public
from further crimes committed by Barahona. Barahona has not demonstrated
that the district court abused its discretion by determining a variance was
warranted under the totality of the circumstances. See Gall, 128 S. Ct. at 597.

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Case: 10-30540 Document: 00511385942 Page: 3 Date Filed: 02/17/2011
No. 10-30540
Barahona argues that the imposition of a 120-month sentence in this case,
where the applicable Guidelines range was 46 to 57 months, was excessive.
However, this court has upheld variances even greater than the increase in
Barahona’s case. See United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir.
2008); United States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008);
United States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006); United States v.
Simkanin, 420 F.3d 397, 419-20 (5th Cir. 2005).
Barahona argues that the district court failed to consider the sentencing
objective of avoiding unwarranted sentencing disparities, as set forth in Section
3553(a)(6). This argument is unavailing. See Herrera-Garduno, 519 F.3d at 532
n.6; Smith, 440 F.3d at 709.
Barahona has not shown that the district court abused its discretion by
deciding to impose a sentence above the Guidelines range or that the sentence
imposed was unreasonable. See Gall, 128 S. Ct. at 597; Williams, 517 F.3d at
808-13. Accordingly, the judgment is AFFIRMED.

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