USA v. Marcos Uribe-Nava

Filing

UNPUBLISHED OPINION FILED. [14-10068 Affirmed ] Judge: EGJ , Judge: RHB , Judge: PRO. Mandate pull date is 10/20/2014 for Appellant Marcos Uribe-Nava [14-10068]

Case: 14-10068

Document: 00512785091

Page: 1

Date Filed: 09/29/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10068
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 29, 2014

UNITED STATES OF AMERICA,
Plaintiff - Appellee

Lyle W. Cayce
Clerk

v.
MARCOS URIBE-NAVA,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-120-1
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Marcos Uribe-Nava challenges the 24-month sentence imposed following
his guilty-plea conviction for illegal reentry into the United States after
deportation. 8 U.S.C. § 1326. He claims: the sentence, which exceeds his 10–
16

months’

advisory

Guidelines

sentencing

range,

is

substantively

unreasonable, including because the district court erred in balancing the 18

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-10068

Document: 00512785091

Page: 2

Date Filed: 09/29/2014

No. 14-10068
U.S.C. § 3553(a) sentencing factors by significantly overvaluing his criminal
history.
Prior to sentencing, Uribe was advised by the court that it had concluded
tentatively that a sentence above the advisory sentencing range would be
appropriate, for the reasons stated in the presentence investigation report
(PSR). Uribe did not object to the substantive reasonableness of his sentence
in district court. Therefore, review is only for plain error. E.g., United States
v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).
Under that standard, Uribe must show a forfeited plain (clear or obvious)
error that affected his substantial rights. Puckett v. United States, 556 U.S.
129, 135 (2009). If he does so, this court has the discretion to correct the error,
but should do so only if it seriously affects the fairness, integrity, or public
reputation of the proceedings. Id. (Uribe acknowledges our precedent dictates
plain-error review, but preserves for possible further review his claim that no
objection to the reasonableness of his sentence was required.)
An above-Guidelines sentence is unreasonable if the district court: did
not account for a factor that should have received significant weight; gave
significant weight to an irrelevant or improper factor; or made a clear error of
judgment in balancing the sentencing factors. United States v. Smith, 440 F.3d
704, 708 (5th Cir. 2006).
For imposing sentence, the district court considered the PSR, letters and
photographs submitted by Uribe, the arguments of counsel, Uribe’s allocution,
the properly calculated advisory Guidelines sentencing range, and the
§ 3553(a) factors. The court determined that, in the light of Uribe’s criminal
history, “a sentence above the top of the advisory guideline range [wa]s
necessary to appropriately address all the [relevant] factors”.

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Document: 00512785091

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Date Filed: 09/29/2014

No. 14-10068
Uribe essentially asks our court to reweigh the sentencing factors.
Because “[t]he sentencing judge is in a superior position to find facts and judge
their import . . . ”, such an analysis is inappropriate. Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011).
Among other things, the sentence did not exceed the statutory maximum
sentence of ten years’ imprisonment. 28 U.S.C. § 1326(b)(1). There was no
plain error.
AFFIRMED.

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