USA v. Marco Perez-Santizo
UNPUBLISHED OPINION FILED. [12-31069 Affirmed ] Judge: CDK , Judge: WED , Judge: EBC. Mandate pull date is 07/26/2013 for Appellant Marco Antonio Perez-Santizo [12-31069]
Date Filed: 07/05/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
July 5, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA,
MARCO ANTONIO PEREZ-SANTIZO,
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:11-CR-273-1
Before KING, DAVIS, and CLEMENT, Circuit Judges.
Marco Antonio Perez-Santizo entered an unconditional guilty plea for
illegal reentry after deportation. He was sentenced below the guidelines range
to 24 months in prison.
Perez-Santizo first seeks to appeal the denial of his motion to dismiss the
indictment on the ground that the underlying deportation order was invalid.
“[W]hen a defendant enters a voluntary and unconditional guilty plea, the plea
has the effect of waiving all nonjurisdictional defects in the prior proceedings.”
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 07/05/2013
United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008) (internal
quotation marks omitted). In reaching that conclusion, our court noted that,
under United States v. Cotton, 535 U.S. 625, 630-31 (2002), indictment defects
do not deprive a court of jurisdiction. Id.
Perez-Santizo does not contend that his guilty plea was unknowing or
involuntary. Perez-Santizo’s challenge to the sufficiency of the factual basis for
his guilty plea is raised for the first time in his reply brief and will not be
considered. See Taita Chemical Co., Ltd. v. Westlake Styrene Corp., 246 F.3d
377, 384 n.9 (5th Cir. 2001). Because Perez-Santizo entered a knowing and
voluntary unconditional guilty plea, he waived his right to challenge the denial
of his motion to dismiss the indictment and waived any challenge to the
sufficiency of the indictment. See Daughenbaugh, 549 F.3d at 1012-13.
Even if we were to consider the denial of Perez-Santizo’s motion to
dismiss, Perez-Santizo’s arguments challenging the sufficiency of the indictment
and the underlying deportation order were cloaked in generalities and were
based on what he believed the immigration documents would show and his
belief that his deportation proceedings were flawed and did not comport with
due process. He did not explain why there was a lack of notice and did not point
to any documents to substantiate his allegation of lack of notice. See United
States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002). Perez-Santizo also
failed to show that the alleged procedural deficiencies actually prejudiced him;
he did not show that there was a reasonable likelihood that but for the errors
complained of he would not have been deported.
See United States v.
Lopez-Vasquez, 227 F.3d 476, 485-86 (5th Cir. 2000). Because Perez-Santizo
failed to show that his deportation proceedings were invalid, Perez-Santizo’s
2000 removal order may permissibly serve as a basis for his conviction under
§ 2L1.2(b)(1)(A)(vii). See id. at 485.
Date Filed: 07/05/2013
To the extent that Perez-Santizo avers that he should have been allowed
to withdraw his guilty plea because he had shown in his post-plea sentencing
submissions that the initial order of deportation was flawed, we reject the
argument. At no time did Perez-Santizo request or file a motion to withdraw
his guilty plea in the district court. See United States v. Grant, 117 F.3d 788,
789 (5th Cir. 1997).
Finally, Perez-Santizo challenges the procedural and substantive
reasonableness of his below-guideline sentence. We review a sentence for
reasonableness. See Gall v. United States, 552 U.S. 38, 56 (2007). A sentence
below the properly calculated guidelines range, as in this case, is presumed to
be reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)
(within-guidelines sentence); United States v. Goodman, 307 F. App’x 811, 812
(5th Cir.2009) (below-guidelines sentence, cited in United States v. Murray, 648
F.3d 251, 258 (5th Cir. 2011)).
Perez-Santizo offers no good reason for us to disturb that presumption.
See Cooks, 589 F.3d at 185; Gall, 552 U.S. at 51. Moreover, the sentence is not
rendered unreasonable by the lack of an empirical basis for the illegal reentry
guideline or by any double counting of Perez-Santizo’s criminal history. See
United States v. Teuschler, 689 F.3d 397, 397 (5th Cir. 2012); United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). The judgment of the district court
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