USA v. Martin Alvarado-Zapata

Filing

UNPUBLISHED OPINION FILED. [10-50036 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/22/2010 for Appellant Martin Alvarado-Zapata [10-50036]

USA v. Martin Alvarado-Zapata Case: 10-50036

Document: 00511280451 Page: 1 Date Filed: 11/01/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50036 S u m m a r y Calendar November 1, 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. M A R T I N ALVARADO-ZAPATA, 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-959-2

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* M a r t in Alvarado-Zapata appeals his 188-month concurrent sentences for c o n s p ir a c y with intent to distribute more than 100 kilograms of marijuana, c o n s p ir a c y to import more than 100 kilograms of marijuana, possession with in t e n t to distribute more than 100 kilograms of marijuana, and importation of m o r e than 100 kilograms of marijuana. His two prior felony drug convictions q u a lifie d him as a career offender under the Sentencing Guidelines.1 He asserts
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 *

See U.S.S.G. § 4B1.1(a).

Dockets.Justia.com

Case: 10-50036 Document: 00511280451 Page: 2 Date Filed: 11/01/2010 No. 10-50036 t h a t the sentences were unreasonable because the career offender guideline o v e r s ta te d the danger he presents to the community, the severity of his conduct a s a mule who was paid a few hundred dollars to "carry a heavy bundle," and the n e e d for deterrence. He contends that the career offender guideline unfairly t r e a t e d him the same way it treats serial violent offenders and the leaders of d r u g organizations. Additionally, he contends that the guideline failed to

a c c o u n t for his family's economic circumstances or his personal characteristics a s a man who lived in poverty who sought to be a good father. He asserts that a 10-year sentence would have been sufficient to deter him from future criminal c o n d u c t . Finally, he contends that the sentence was unreasonable because it w a s based in part upon unsubstantiated speculation by the district court that he h a d committed additional drug trafficking crimes. We review sentences for reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a).2 We first examine whether the district court committed a n y significant procedural error, "such as . . . selecting a sentence based on c le a r ly erroneous facts."3 Because Alvarado-Zapata did not raise his argument in the district court that his sentences were based upon unsubstantiated s p e c u la t io n about his criminal history, the potential procedural error is subject t o plain error review.4 He must show a forfeited error that is clear or obvious a n d that affects his substantial rights.5 If he makes such a showing, we have the d is c r e t io n to correct the error only if it seriously affects the fairness, integrity, o r public reputation of judicial proceedings.6
Gall v. United States, 552 U.S. 38, 46, 51 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
3 2

Gall, 552 U.S. at 51.

See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
5

4

See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). See id.

6

2

Case: 10-50036 Document: 00511280451 Page: 3 Date Filed: 11/01/2010 No. 10-50036 A lt h o u g h the district court asserted a belief that Alvarado-Zapata "ma[de] h is living" smuggling drugs and suggested that he had engaged in smuggling a c t iv it ie s for which he had not been caught, the record does not support a finding t h a t the court selected his sentences based upon that belief. The district court e m p h a s iz e d that this was Alvarado-Zapata's third drug trafficking conviction, t h a t he was caught with a greater amount of drugs each time, and that his e a r lie r federal sentences had not been adequate to deter his criminal behavior. We find no plain error.7 W e then review the substantive reasonableness of the sentences under a d e fe r e n t ia l abuse of discretion standard, taking into account the totality of the c ir c u m s t a n c e s .8 Because Alvarado-Zapata did not object to his sentences as u n r e a s o n a b le in the district court, we review the issue for plain error, which " r e q u ir e s considerable deference to the district court and erects a more s u b s t a n t ia l hurdle to reversal of a sentence than does the reasonableness s t a n d a r d ."9 We also apply a presumption of reasonableness to sentences that fall w it h in the Guidelines range.1 0 T h e record shows that the district court properly considered the relevant s e n ten cin g factors under § 3553(a) and sentenced Alvarado-Zapata at the bottom o f the guidelines range after considering his arguments for a downward v a r ia n ce . As noted above, the court emphasized Alvarado-Zapata's prior

t r a ffic k in g convictions, the increasing quantities of drugs he was caught with in e a c h successive conviction, and the failure of his earlier federal sentences to d e t e r his criminal activities. He fails to show that the district court committed

7

See Puckett, 129 S. Ct. at 1429. Gall, 552 U.S. at 51; Cisneros-Gutierrez, 517 F.3d at 764. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

8

9

10

3

Case: 10-50036 Document: 00511280451 Page: 4 Date Filed: 11/01/2010 No. 10-50036 a n y error, plain or otherwise, in imposing the guidelines minimum, and he fails t o overcome the presumption of reasonableness.11 T h e judgment of the district court is AFFIRMED.

See Puckett, 129 S. Ct. at 1429; Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92; Alonzo, 435 F.3d at 554.

11

4