USA v. Oscar Acosta

Filing

UNPUBLISHED OPINION FILED. [14-10545 Affirmed ] Judge: WED , Judge: EBC , Judge: GJC Mandate pull date is 12/17/2014 for Appellant Oscar Acosta [14-10545]

Case: 14-10545

Document: 00512850743

Page: 1

Date Filed: 11/26/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10545
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 26, 2014

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
OSCAR ACOSTA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-213-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Oscar

Acosta

appeals

from

his

conviction

of

possession

of

methamphetamine with intent to distribute, for which he was sentenced to 420
months of imprisonment. Acosta contends that his sentence was substantively
unreasonable because of his youth, his father’s bad example, and the recently
effective Amendment 782 to the Sentencing Guidelines, which lowered offense
levels for many drug offenders.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10545
Because Acosta did not object to the reasonableness of his sentence in
the district court, his challenge on appeal is reviewed for plain error. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To succeed on
plain error review, an appellant must show (1) a forfeited error (2) that is clear
or obvious and (3) that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, this court may
exercise its discretion “to remedy the error . . . if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks, bracketing, and citation omitted).
“[A] sentence within a properly calculated guideline sentencing range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).

“The presumption is rebutted only upon a 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 F.3d 173, 186 (5th Cir. 2009).
The district court noted Acosta’s age, then determined that his criminal
history rendered him a danger to society as a potential recidivist and concluded
that a within-range sentence would address the 18 U.S.C. § 3553(a) sentencing
factors.

Protection of the public and specific deterrence are among the

§ 3553(a) factors. See § 3553(a)(2)(B), (C). Age and lack of guidance as a youth
are factors that may be considered under § 3553(a).

United States v.

Mondragon-Santiago, 564 F.3d 357, 363 & n.4 (5th Cir. 2009). However, an
adult defendant’s age, without more, does not render a within-range sentence
substantively unreasonable, at least not to the extent that such a sentence is
reversible under the plain error standard. See United States v. Powell, 732
F.3d 361, 382 (5th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014). Moreover,

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No. 14-10545
the district court’s weighing of the § 3553(a) factors is entitled to deference,
and Acosta’s mere disagreement with the district court’s weighing of those
factors does not establish that the sentence was substantively unreasonable.
See Gall v. United States, 552 U.S. 38, 51 (2007).
Finally, the district court correctly used the Guidelines in effect at the
time of Acosta’s sentencing on May 2, 2014. See United States v. Martin, 596
F.3d 284, 286 (5th Cir. 2010).

Amendment 782 becomes retroactively

applicable effective November 1, 2015. See U.S.S.G., App. C, Amend.788.
Acosta may seek a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2),
to become effective on November 15, 2015, but he cannot obtain relief on direct
appeal. See Martin, 596 F.3d at 286.
AFFIRMED.

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