USA v. Felipe Alvarez-Cervante
Filing
UNPUBLISHED OPINION FILED. [12-30751 Affirmed ] Judge: PEH , Judge: PRO , Judge: LHS Mandate pull date is 06/10/2013 for Appellant Felipe Alvarez-Cervantes [12-30751]
Case: 12-30751
Document: 00512247554
Page: 1
Date Filed: 05/20/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 12-30751
Summary Calendar
May 20, 2013
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FELIPE ALVAREZ-CERVANTES, also known as Felipe Cervantes, also known
as Jose Garciamata, also known as Jesus Alvarez Vazquez, also known as Victor
Gallegscorona, also known as Daniel Hernandez Bareda, also known as Daniel
Bareda Hernandez, also known as Jaime Cruz-Guevara,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CR-294-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Felipe Alvarez-Cervantes appeals and challenges his above-Guidelines
sentence of 45 months of imprisonment. The sentence was imposed following his
guilty plea convictions of possession of a firearm by a prohibited person and
illegal presence in the United States after removal. Alvarez argues the district
court abused its discretion by basing its sentence of imprisonment largely on its
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30751
Document: 00512247554
Page: 2
Date Filed: 05/20/2013
No. 12-30751
determination that he needed anger management treatment and rehabilitation.
Alvarez relies on the Supreme Court’s holding that a district court “may not
impose or lengthen a prison sentence to enable an offender to complete a
treatment program or otherwise to promote rehabilitation.” Tapia v. United
States, 131 S. Ct. 2382, 2393 (2011).
Alvarez objected to his sentence as unreasonable, but his objection was not
specific enough to alert the district court of its potential error of considering the
need for anger management treatment or rehabilitation when deciding on a
sentence of imprisonment. Accordingly, our review is limited to plain error. See
United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011) (recognizing that
an objection must be raised in such a manner that the district court is alerted
of the potential error and may correct itself). To prevail on plain error review,
Alvarez must show that a forfeited error occurred, the error was clear or obvious,
and the error affected his substantial rights. See United States v. Garza, 706
F.3d 655, 662 (5th Cir. 2013). If those factors are established, the decision to
correct the error is within our sound discretion, which will not be exercised
unless the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
The district court provided an extensive explanation of its sentence. The
court took note of Alvarez’s history of domestic violence, as well as his problems
with anger management, and determined that Alvarez had not been
rehabilitated “from prior attempts by the criminal justice system.” The district
court indicated that its sentence addressed Alvarez’s anger problems and his
history of domestic violence, and that the sentence also took into account
Alvarez’s recidivism, the need to protect society from his dangerous behavior,
and the need to impress upon Alvarez a respect for the law. After announcing
the 45-month sentence of imprisonment, the district court recommended that
Alvarez be placed in a prison facility where counseling for anger control and
domestic violence would be offered to him, and it made Alvarez’s participation
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Case: 12-30751
Document: 00512247554
Page: 3
Date Filed: 05/20/2013
No. 12-30751
in counseling for anger control and domestic violence a condition of supervised
release.
Our review of the sentencing shows the district court did not impose or
lengthen the term of imprisonment for the purpose of making Alvarez eligible
for a counseling or rehabilitative program, and therefore it did not clearly or
obviously err under Tapia. See United States v. Receskey, 699 F.3d 807, 812 (5th
Cir. 2012). The district court’s statement of reasons shows that its concern with
Alvarez’s need for anger management counseling and rehabilitation was, at
most, an “additional justification,” rather than the “dominant factor,” in its
selection of a sentence of imprisonment. See id. Alvarez has not shown an
entitlement to relief under the plain error standard. Accordingly, the judgment
of the district court is AFFIRMED.
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