USA v. Omar Correa-Huerta

Filing

UNPUBLISHED OPINION FILED. [13-10454 Affirmed ] Judge: RHB , Judge: CH , Judge: SAH Mandate pull date is 03/05/2014 for Appellant Omar Correa-Huerta [13-10454]

Case: 13-10454

Document: 00512530397

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Date Filed: 02/12/2014

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

No. 13-10454
Summary Calendar

FILED
February 12, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
OMAR CORREA-HUERTA,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-229-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Omar Correa-Huerta challenges the 71-month sentence imposed
following his guilty-plea conviction for illegal reentry (2008) following
deportation (2007). Correa contends his sentence is substantively unreasonable because it is the product of provisions in the advisory Sentencing
Guidelines that lead to unwarranted sentencing outcomes.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10454
Specifically, he disagrees with the application of certain Guidelines
provisions, which increase defendant’s criminal-history category for prior
sentences imposed within ten years of the commencement of defendant’s
instant offense. See U.S.S.G. §§ 4A1.1, cmt. 2 (Criminal History Category),
4A1.2(e)(2) (Definitions and Instructions for Computing Criminal History).
Correa maintains his six-month sentence from 23 February 1998, for a
controlled-substance offense, would not have resulted in the imposition of
criminal-history points had the ten-year period been measured from the date
of sentencing on the instant offense (April 2013) rather than from the date of
his illegal reentry (2008). According to Correa, it is irrational to subject illegalreentry defendants who live in the United States without incident—as he
claims he did from 2008 to 2012—to a longer look-back period than those who
engage immediately in criminal activity upon their return to the United States.
Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the Guideline-sentencing range for use in deciding on the sentence to
impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In that respect, for
issues preserved in the district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Correa does not claim procedural
error; he maintains only that his sentence is substantively unreasonable.
He did not, however, object to his sentence in district court; rather, he
requested a lesser sentence than ultimately imposed. As he concedes, under
this court’s precedent, his failure to object results in only plain-error review.
See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007). Correa notes,

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however, the circuits are divided on whether defendant must object specifically
to his sentence to preserve error, and he wishes to preserve the issue for
possible further review.
Under the plain-error standard, Correa must show a clear or obvious
forfeited error that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). Even if he shows such reversible plain error, we have
the discretion to correct the error, but should do so only if it seriously affects
the fairness, integrity, or public reputation of the proceedings. See id. Correa’s
challenge to his sentence based on the calculation of his criminal history
category fails.
“Where a deported alien enters the United States and remains here with
the knowledge that his entry is illegal, his remaining here until he is ‘found’ is
a continuing offense”. United States v. Santana-Castellano, 74 F.3d 593, 598
(5th Cir. 1996) (citation omitted). In a recent unpublished opinion, a panel of
this court upheld a sentence for illegal reentry under similar facts. United
States v. Munoz-Garcia, 533 F. App’x 364, 366 (5th Cir. 2013) (citing SantanaCastellano in upholding sentence under de novo review where appellant
contended date of arrest, rather than reentry six years earlier, made
application of enhancement improper).

Although Munoz-Garcia is not

precedential, we find its reasoning persuasive and directly on point.
“A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”

United States v. Campos-

Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (citations omitted). Correa can
rebut the presumption of reasonableness by “showing that the sentence does
not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors”. United States v. Cooks, 589

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F.3d 173, 186 (5th Cir. 2009) (citation omitted). His disagreement with the
assignment of criminal-history points for prior convictions is insufficient to
demonstrate

that

the

within-Guidelines

sentence

was

substantively

unreasonable; restated, the district court did not plainly err in imposing it.
See, e.g., United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008);
United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
AFFIRMED.

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