USA v. William Acevedo
UNPUBLISHED OPINION FILED. [11-41306 Affirmed ] Judge: EHJ , Judge: FPB , Judge: JEG Mandate pull date is 08/06/2012 for Appellant William Alexander Acevedo [11-41306]
Date Filed: 07/16/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
July 16, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
WILLIAM ALEXANDER ACEVEDO,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CR-727-1
Before JONES, Chief Judge, and BENAVIDES and GRAVES, Circuit Judges.
William Alexander Acevedo pleaded guilty to illegally reentering the
United States after removal following a felony conviction, and he was sentenced
within the advisory guideline range to 21 months of imprisonment. He contends
that the district court’s explanation of the sentence was inadequate and that the
sentence was substantively unreasonable.
Because he did not object on this basis in the district court, we review for
plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361-64 (5th
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 07/16/2012
Cir. 2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To
show plain error, Acevedo must show a forfeited error that is clear or obvious
and that affects his substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). If he makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
The sentencing transcript reveals that the sentencing judge reviewed the
presentence report, listened to the parties’ sentencing arguments, expressed
concern about Acevedo’s criminal history, and stated that it had considered the
§ 3553(a) factors, yet refused to depart below the guideline range or sentence
Acevedo to less than 21 months of imprisonment. Thus, the district court’s
statement of reasons for the sentence was adequate. See Rita v. United States,
551 U.S. 338, 359 (2007); United States v. Gomez-Herrera, 523 F.3d 554, 564-65
(5th Cir. 2008).
To the extent that Acevedo contends that the district court denied his
motion for a downward departure under Application Note 8 to U.S.S.G. § 2L1.2
based on cultural assimilation, we lack jurisdiction to review his claim. United
States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). In addition, we afford
Acevedo’s within-guidelines sentence a presumption of reasonableness. See
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Even where the plain
error standard does not apply to the substantive reasonableness of a sentence,
“[t]he fact that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall v. United States, 552 U.S. 38, 51 (2007). Acevedo cannot
show that his within-guidelines sentence was substantively unreasonable under
the more exacting plain error standard. See Puckett, 556 U.S. at 135.
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