USA v. Moises Aguilar-Martinez

Filing

UNPUBLISHED OPINION FILED. [10-50309 Affirmed] Judge: WG , Judge: WED , Judge: PRO. Mandate pull date is 12/08/2010 for Appellant Moises Ulises Aguilar-Martinez [10-50309]

USA v. Moises Aguilar-Martinez Case: 10-50309

Document: 00511296494 Page: 1 Date Filed: 11/17/2010

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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 . 10-50309 S u m m a r y Calendar November 17, 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 O I S E S ULISES AGUILAR-MARTINEZ, also known as Moises AguilarM a r tin e z , 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. 3:06-CR-2541-1

B e fo r e GARWOOD, DAVIS and OWEN, Circuit Judges. P E R CURIAM:* M o is e s Ulises Aguilar-Martinez appeals the 14-month consecutive s e n te n c e imposed following the revocation of his supervised release. AguilarM a r t in e z argues that the sentence was unreasonable because it constituted an a d d it io n a l punishment for his new offense, instead of a penalty for his breach of t r u s t for violating the terms of his supervised release. Aguilar-Martinez also a r g u e s that the sentence is greater than necessary to achieve the objectives of

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50309 Document: 00511296494 Page: 2 Date Filed: 11/17/2010 No. 10-50309 t h e 18 U.S.C. § 3553(a) factors because he is a changed person from his criminal p a s t and the reason underlying his repeated returns to the United States was t o help his family. B e c a u s e Aguilar-Martinez did not object to the reasonableness of his r e v o c a t io n sentence in the district court, review is for plain error. See United S ta t e s v. Davis, 602 F.3d 643, 646-47 (5th Cir. 2010). To show plain error, A g u ila r -M a r t in e z must show a forfeited error that is clear or obvious and that a ffe c t s his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2 0 0 9 ). If Aguilar-Martinez makes such a showing, this court has the discretion t o correct the error but only if it seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings. Id. I n any event, Aguilar-Martinez has not demonstrated error, plain or o th e rw is e . A s to Aguilar-Martinez's argument that the revocation sentence was u n r e a s o n a b le in light of the sentence imposed for his most recent conviction for ille g a l reentry, this court has rejected similar arguments. See United States v. L o p e z -V e la s q u e z , 526 F.3d 804, 808-09 (5th Cir. 2008). Further, the transcript o f the revocation hearing reveals that the district court considered the § 3553(a) fa c t o r s when imposing Aguilar-Martinez's revocation sentence. Specifically, the d is t r ic t court determined that the 14-month sentence was "a fair and reasonable s e n te n c e " necessary to reflect Aguilar-Martinez's criminal history of returning t o the United States illegally, to promote respect for the law, and to provide a d e q u a t e deterrence. This court has held that "a rebuttable presumption of reasonableness also a p p lie s to a consecutive sentence imposed within the parameters of the advisory fe d e r a l guidelines." United States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006). Further, running sentences for revocation of supervised release consecutively, rather than concurrently, is preferred under the Guidelines. See U.S.

S e n te n c in g Guidelines Manual § 781.3(f) & cmt. n.4 (2009) (policy statement). 2

Case: 10-50309 Document: 00511296494 Page: 3 Date Filed: 11/17/2010 No. 10-50309 B e c a u s e the 14-month consecutive sentence falls squarely within the bounds of t h e eight to 14-month Guideline range, it is presumptively reasonable. See L o p e z -V e la s q u e z , 526 F.3d at 809. Because Aguilar-Martinez has failed to rebut t h is presumption, his sentence is AFFIRMED. See id.; see also Davis, 602 F.3d a t 646-47.

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