USA v. Rodrigo Padilla-Cortez

Filing

UNPUBLISHED OPINION FILED. [12-50251 Affirmed] Judge: PEH , Judge: PRO , Judge: LHS. Mandate pull date is 12/27/2012 for Appellant Rodrigo Padilla-Cortez [12-50251]

Case: 12-50251

Document: 00512075458

Page: 1

Date Filed: 12/06/2012

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

FILED
No. 12-50251
Summary Calendar

December 6, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RODRIGO PADILLA-CORTEZ, also known as Rodrigo Cortez, also known as
Rodrigo Padilla,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:11-CR-700-1

Before HIGGINBOTHAM, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Rodrigo Padilla-Cortez appeals the sentence imposed following his guilty
plea conviction for illegal reentry following deportation in violation of 8 U.S.C.
§ 1326. Pursuant to U.S.S.G. § 4A1.3, the district court upwardly departed from
the recommended guidelines range of 10 to 16 months and imposed a sentence
of 30 months.

Padilla-Cortez argues this departure was substantively

unreasonable, and specifically that the sentence overstates the seriousness of his

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-50251
offense and fails to take into account his benign motive for returning to the
United States, his outdated criminal history, and his age.
We review the substantive reasonableness of a sentence “under an
abuse-of-discretion standard . . . tak[ing] into account the totality of the
circumstances.” Gall v. United States, 552 U.S. 38, 51 (2007). Although PadillaCortez objected to the substantive reasonableness of the sentence imposed based
upon the district court’s reliance on his outdated convictions; he did not advance
the other arguments he raises before this court, such as age and motive, to
support his objection to the substantive reasonableness of the sentence. Those
arguments, raised for the first time on appeal, are reviewed for plain error. See
United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002); see also Puckett v.
United States, 556 U.S. 129, 135 (2009).
The district court upwardly departed pursuant to § 4A1.3 because PadillaCortez had a history of abusing alcohol and driving after he had consumed
alcohol, a history of assaultive behavior, repeatedly entered the United States
without permission, and had been convicted of numerous criminal offenses which
were too old to be reflected in his criminal history score. The district court
specifically noted that Padilla-Cortez had previously received federal sentences
of 24 months and 30 months for illegal reentry and that those sentences had not
deterred him from returning to the United States.
Padilla-Cortez’s criminal history, including his uncounted convictions,
provided a proper basis for an upward departure. See U.S.S.G § 4A1.3(a), p.s.;
United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). The sentence is
justified by the facts, and it advances the objectives of 18 U.S.C. § 3553(a)(2),
such as promoting respect for the law and affording adequate deterrence to
criminal conduct. It is well within the range of variances and departures this
court has upheld. See, e.g., United States v. Herrera-Garduno, 519 F.3d 526, 532
(5th Cir. 2008); United States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir.

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2006); see also United States v. Aguillar-Guerrero, 344 F. App’x 969, 970-71 (5th
Cir. 2009).
Padilla-Cortez’s arguments regarding his potential for recidivism and his
motive for returning to the United States are essentially a request that this
court reweigh the § 3553(a) factors, which we will not do. See Gall, 552 U.S. at
51. As Padilla-Cortez has not shown error, plain or otherwise, with respect to
the substantive reasonableness of the sentence imposed, the judgment of the
district court is AFFIRMED.

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