USA v. Raymundo Garibay

Filing

UNPUBLISHED OPINION FILED. [16-11420 Affirmed] Judge: PEH, Judge: EHJ, Judge: JES. Mandate pull date is 10/19/2017 for Appellant Raymundo Gonzalez Garibay; denying motion to withdraw as counsel filed by Appellant Mr. Raymundo Gonzalez Garibay [8512591-2] [16-11420]

Case: 16-11420

Document: 00514174329

Page: 1

Date Filed: 09/28/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11420
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 28, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
RAYMUNDO GONZALEZ GARIBAY,
Defendant−Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-49-1

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Raymundo Gonzalez Garibay appeals his 78-month, top-of-the-

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11420

Document: 00514174329

Page: 2

Date Filed: 09/28/2017

No. 16-11420
guidelines sentence for illegal reentry in violation of 8 U.S.C. § 1326. He
contends that the sentence violates his due-process rights, asserting that it
could not exceed the two-year maximum under § 1326(a) because the indictment did not allege that he had a conviction that would trigger a sentencing
enhancement under that subsection. He further avers that the sentence is
substantively unreasonable because the court failed to account for his cultural
assimilation. Gonzalez Garibay has also filed a pro se motion requesting that
appointed counsel be relieved of duties for abandonment and conflict of
interest.
Gonzalez Garibay did not raise a due-process challenge in the district
court, so review is for plain error only. See United States v. MondragonSantiago, 564 F.3d 357, 368 (5th Cir. 2009). In any event, he concedes that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), forecloses his dueprocess argument, but he wishes to preserve the issue for possible Supreme
Court review.
We review the substantive reasonableness of a sentence for abuse of discretion. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.
2009). Gonzalez Garibay asserts that the district court improperly balanced
the sentencing factors because it did not give appropriate weight to the mitigating factor of his cultural assimilation. Although cultural assimilation is a
permissible basis for granting a downward departure, courts are not required
to grant such departures and still have discretion when determining the sentence. See United States v. Castillo, 386 F.3d 632, 637−38 (5th Cir. 2004)
(finding that district court did not plainly err by granting a downward departure based on cultural assimilation); U.S.S.G. § 2L1.2, comment. (n.7) (noting
that a “downward departure may be appropriate on the basis of cultural assimilation”) (emphasis added). Moreover, a departure is not warranted where it
2

Case: 16-11420

Document: 00514174329

Page: 3

Date Filed: 09/28/2017

No. 16-11420
is “likely to increase the risk to the public from further crimes of the defendant.” § 2L1.2, comment. (n.7). The record reveals that Gonzalez Garibay had
a serious criminal history, including some violent crimes. There is no requirement that all sentencing factors must be given equal weight; accordingly, the
district court could properly give Gonzalez Garibay’s criminal history more
weight than his cultural assimilation.

See United States v. Hernandez,

633 F.3d 370, 375−76 (5th Cir. 2011). Furthermore, the record reveals that, in
addition to considering the appropriate 18 U.S.C. § 3553(a) factors, the court
considered, but explicitly rejected, Gonzalez Garibay’s theory that his cultural
assimilation warranted a reduced sentence.
Gonzalez Garibay has not rebutted the presumption of reasonableness
that attaches to his properly calculated within-guidelines sentence. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Accordingly, he cannot demonstrate that the court abused its discretion. See Delgado-Martinez, 564 F.3d
at 753.
Gonzalez Garibay is represented by appointed counsel and is not entitled
to “hybrid representation”; therefore he cannot file a pro se motion. United
States v. Ogbonna, 184 F.3d 447, 449 n.1 (5th Cir. 1999) (internal quotation
marks and citations omitted). To the extent that Gonzalez Garibay is requesting to proceed pro se, his request is untimely because it was filed after counsel’s
appellate brief was filed. Cf. United States v. Wagner, 158 F.3d 901, 902-03
(5th Cir. 1998) (stating that once counsel’s withdrawal brief is filed, a motion
to proceed pro se is untimely and should be denied).
The judgment is AFFIRMED; Gonzalez Garibay’s pro se motion to relieve
counsel of duties is DENIED.

3