USA v. Miguel Medina-Tobia
UNPUBLISHED OPINION FILED. [14-51221 Affirmed] Judge: TMR , Judge: JLD , Judge: LHS. Mandate pull date is 07/30/2015 for Appellant Miguel Medina-Tobias [14-51221]
Date Filed: 07/09/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
July 9, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-540-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Miguel Medina-Tobias appeals the 18-month upward variance imposed
by the district court following the revocation of his supervised release. He
argues that the sentence was greater than necessary to achieve the sentencing
goals of 18 U.S.C. § 3553(a) and, therefore, was plainly unreasonable. He
asserts that the district court failed to account for his personal circumstances,
including that he has lived in the United States for most of his life, his family
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 07/09/2015
still lives in the United States, and he considers Mexico a foreign country. He
further contends that the district court did not consider his incarceration for
11 months for a charge of which he was ultimately acquitted.
The revocation sentence imposed by the district court was not plainly
unreasonable. The district court correctly determined that Medina-Tobias’s
illegal reentry into the United States after deportation was a Grade B violation
under U.S.S.G. § 7B1.1(a)(2) and that his original criminal history category
was III, resulting in a policy statement range 8 to 14 months of imprisonment.
The district court considered Medina-Tobias’s arguments concerning his
personal history and characteristics, including his cultural assimilation, as
well as Medina-Tobias’s argument that he was not given credit for time served
while awaiting trial in state court.
The district court determined that a
sentence within the recommended range was inadequate because MedinaTobias was not charged and convicted of illegal reentry after deportation
although he was found and arrested in Dallas, Texas. Although the 18-month
sentence was an upward variance from the policy statement range, it did not
exceed the two-year statutory maximum sentence. See 18 U.S.C. § 3583(e)(3);
U.S.S.G. § 7B1.4(a). We have routinely affirmed revocation sentences that
exceed the advisory range, even where the sentence equals the statutory
maximum. United States v. Warren, 720 F.3d 321, 332-33 (5th Cir. 2013);
United States v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2008). Because the
district court considered Medina-Tobias’s arguments, the policy statement
range, and the § 3553(a) factors, and because the 18-month sentence imposed
by the district court did not exceed the statutory maximum sentence, the
sentence was not plainly unreasonable.
Whitelaw, 580 F.3d at 265.
See Warren, 720 F.3d at 326;
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