USA v. Cesar Landeros-Fuente


UNPUBLISHED OPINION FILED. [10-30748 Affirmed] Judge: JES , Judge: RHB , Judge: LHS. Mandate pull date is 08/15/2011 for Appellant Cesar Alejandro Landeros-Fuentes [10-30748]

Download PDF
Case: 10-30748 Document: 00511549522 Page: 1 Date Filed: 07/25/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-30748 Summary Calendar July 25, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. CESAR ALEJANDRO LANDEROS-FUENTES, Defendant - Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:10-CR-15-1 Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges. PER CURIAM:* Cesar Alejandro Landeros-Fuentes appeals his 60-month sentence, imposed following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(2). Due to Landeros’ Sentencing Guidelines criminalhistory category’s underrepresenting the seriousness of his criminal history, the district court departed upwardly from the presentence investigation report’s (PSR) recommended Guidelines’ sentencing range of 18 to 24 months’ imprisonment and sentenced him, inter alia, to 60 months’ imprisonment. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30748 Document: 00511549522 Page: 2 Date Filed: 07/25/2011 No. 10-30748 Landeros maintains the district court erred by departing upwardly, claiming the Guidelines accurately accounted for his prior convictions. Although, post-Booker, the sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard, the district court must still properly calculate the advisory Guideline sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Lopez does not claim procedural error. As discussed, “the district court’s decision to depart upwardly and the extent of that departure” is reviewed for abuse of discretion. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (citation and internal quotation marks omitted). An upward departure is not an abuse of discretion if it furthers the 18 U.S.C. § 3553 factors and is justified by the facts of the case. Id. That our court “might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court”. Gall, 552 U.S. at 51. The district court departed upwardly based on Guideline § 4A1.3 (authorizes upward departure if defendant’s criminal-history category underrepresents seriousness of his criminal history or likelihood of recidivism). Section 4A1.3(a)(2)(E) states: an upward departure may be based on “prior similar adult criminal conduct not resulting in a criminal conviction”. U.S.S.G. § 4A1.3(a)(2)(E). In considering the § 3553 factors, the district court noted: Landeros had repeatedly reentered and committed crimes in the United States; and, despite his numerous reentries, he had only one prior conviction for illegal reentry. Because the district court’s stated reasons for imposing the upward departure 2 Case: 10-30748 Document: 00511549522 Page: 3 Date Filed: 07/25/2011 No. 10-30748 furthered the § 3553 factors and were supported by the PSR, the district court did not abuse its discretion in departing upwardly. See United States v. LopezVelasquez, 526 F.3d 804, 805 (5th Cir. 2008) (upholding 42-month upward variance from 30-month Guidelines maximum based on prior deportations and lack of respect for law). AFFIRMED. 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?