USA v. Francisco Gonzalez-Cortez

Filing

UNPUBLISHED OPINION FILED. [12-41240 Affirmed ] Judge: CDK , Judge: HRD , Judge: JEG Mandate pull date is 02/07/2014 for Appellant Francisco Gonzalez-Cortez [12-41240]

Case: 12-41240

Document: 00512504696

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Date Filed: 01/17/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 12-41240
Summary Calendar

FILED
January 17, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO GONZALEZ-CORTEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-627-1
Before KING, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM: *
Francisco Gonzalez-Cortez (Gonzalez) pleaded guilty of possession with
intent to distribute 100 grams or more of heroin, and he was sentenced to a 46month term of imprisonment and to a statutory minimum four-year period of
supervised release. In this appeal, Gonzalez raises issues related to the district
court’s imposition of a period of supervised release.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Date Filed: 01/17/2014

No. 12-41240
After United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for procedural error and substantive reasonableness under an abuse
of discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th
Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). Because
Gonzalez did not object to the procedural and substantive reasonableness of
his sentence, however, our review is for plain error. 1 See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain error, a defendant
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. To show that an error was clear or obvious, “A defendant need
not show that the specific factual and legal scenario has been addressed but
must at least show error in the straightforward applications of case law. By
contrast, an error is not plain if it requires the extension of precedent.” United
States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012) (internal quotation
marks and citations omitted).
Gonzalez contends that imposition of the four-year period of supervised
release was procedurally unreasonable because it was imposed without an
adequate explanation, despite the suggestion, in U.S.S.G. § 5D1.1(c) (2011),
that defendants like him should not be sentenced to a period of supervised
release. Because he qualified for the safety-valve provision, he contends, a
period of supervised release was not “required by statute,” for purposes of
§ 5D1.1(c).

Gonzalez has preserved for possible further review the question whether his
substantive unreasonableness claim should not be subject to plain-error review.
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No. 12-41240
In United States v. Miranda-Delgado, No. 12-41129, 2013 WL 3475113,
at *1 (5th Cir. July 11, 2013) (unpublished), this court, applying the plain error
standard, rejected the defendant’s contention that “his qualification for relief
under the safety-valve provision relieved the court from any statutory
obligation to impose a term of [supervised release] and triggered application of
§ 5D1.1(c).” The court observed that there were no cases from this or any other
circuit on point. Id. Accordingly, the court concluded, any error was not clear
or obvious under current law. Id.
Although Miranda-Delgado is not dispositive, it is persuasive authority,
and Gonzalez cites no authority in support of his legal argument, which
involves an extension of the law. See 5th Cir. R. 47.5.4; see also Vargas-Soto,
700 F.3d at 182. In light of Miranda-Delgado, it was neither clear nor obvious
that Gonzalez was eligible for relief from imposition of a period of supervised
release under § 5D1.1(c). See 2013 WL 3475113, at *1.
Gonzalez contends that the district court failed to explain adequately its
reasons for imposing a period of supervised release.

The district court’s

statement that it had considered the statutory sentencing factors provided a
sufficiently particularized explanation of its decision to impose a period of
supervised release. See United States v. Becerril-Pena, 714 F.3d 347, 349-51
(5th Cir. 2013).
Because he qualified for the safety-valve provision, Gonzalez asserts, he
was eligible for a period of supervised release of less than the statutory
minimum four-year period. Contrary to Gonzalez’s assertion, the record tends
to support the conclusion that the district court was aware that it could impose
a period of supervised release of less than four years.

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No. 12-41240
Gonzalez has not rebutted the presumption that his within-guidelines
four-year term of supervised release was substantively reasonable. See United
States v. Cancino-Trinidad, 710 F.3d 601, 607-08 (5th Cir. 2013).
Next, Gonzalez contends that the district court plainly erred in imposing
a “true name and date of birth” condition of supervised release in violation of
his rights under the First Amendment.

A district court may impose any

condition of supervised release that is reasonably related to one of four factors:
(1) the nature and characteristics of the offense and the history and
characteristics of the defendant, (2) deterrence of criminal conduct,
(3) protection of the public, and (4) the need to provide the defendant with
educational training, medical care, or other correctional treatment. United
States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009); 18 U.S.C. §§ 3553(a)(1),
(2)(B)-(D), 3583(d). The condition may not involve a greater deprivation of
liberty than is reasonably necessary and must be consistent with the policy
statements issued by the Sentencing Commission. Weatherton, 567 F.3d at
153.
Gonzalez asserts that the true-name special condition was not
reasonably related to one of the four factors because his offense did not involve
the use of a false name or false date of birth and because the presentence report
did not indicate that he has a history of doing so. He contends that he has a
First Amendment right to use a false name or false date of birth in some
circumstances and that the true-name condition is not narrowly tailored to
accommodate that constitutional right. Because Gonzalez’s argument involves
an extension of United States v. Alvarez, 132 S. Ct. 2537, 2544-47, 2553-55
(2012) (Breyer, J., concurring), rather than a straightforward application of
that case, any error on the part of the district court was not clear or obvious.
See Vargas-Soto, 700 F.3d at 182. The judgment is AFFIRMED.
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