USA v. Alberto Rivera-Nevarez

Filing

UNPUBLISHED OPINION FILED. [14-11156 Affirmed] Judge: CES , Judge: ECP , Judge: CH. Mandate pull date is 07/20/2015 for Appellant Alberto Rivera-Nevarez [14-11156]

Case: 14-11156

Document: 00513096933

Page: 1

Date Filed: 06/29/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11156
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 29, 2015

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff-Appellee
v.
ALBERTO RIVERA-NEVAREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:14-CR-57-1

Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
Alberto

Rivera-Nevarez

appeals

the

27-month

within-guidelines

sentence he received following his guilty plea to illegal reentry, in violation of
8 U.S.C. § 1326. For the first time on appeal, he contends that his sentence is
procedurally unreasonable because the district court failed to adequately
explain the reasons for the sentence imposed, specifically failing to address his
mitigation argument.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-11156

Document: 00513096933

Page: 2

Date Filed: 06/29/2015

No. 14-11156
Because Rivera-Nevarez did not raise the objection below, review is for
plain error only. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). To establish plain error, Rivera-Nevarez 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). Even if he makes such a showing, this
court has the discretion to correct the error but will do so only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Given that the sentence imposed was within the guidelines range, little
explanation of the sentence was required, and the district court’s statement, in
response to Rivera-Nevarez’s plea for a more lenient sentence, that a sentence
at the high end of the guidelines range was necessary for just punishment and
deterrence was sufficiently explanatory. See Rita v. United States, 551 U.S.
338, 356-57 (2007). Moreover, even if it is assumed that the district court’s
statement amounted to clear or obvious error, the error is not reversible given
that Rivera-Nevarez has not shown that his substantial rights were affected.
See United States v. Whitelaw, 580 F.3d 256, 262-63 (5th Cir. 2009);
Mondragon-Santiago, 564 F.3d at 365. To the extent that Rivera-Nevarez
argues that Whitelaw was wrongly decided, the argument is unavailing. See
United States v. Walker, 302 F.3d 322, 325 (5th Cir. 2002).
The judgment of the district court is AFFIRMED.

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