USA v. Baldemar Carrillo, Jr.
UNPUBLISHED OPINION FILED. [16-41660 Affirmed] Judge: WED, Judge: EBC, Judge: GJC. Mandate pull date is 09/12/2017 for Appellant Baldemar Carrillo Jr. [16-41660]
Date Filed: 08/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
August 22, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
BALDEMAR CARRILLO, JR. ,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-577-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Baldemar Carrillo, Jr., appeals the above-guidelines sentence imposed
for his conspiracy to transport an undocumented alien conviction. He contends
that the sentence imposed is substantively unreasonable and that the district
court made a clear error of judgment in balancing the 18 U.S.C. § 3553(a)
sentencing factors. We affirm.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 08/22/2017
We consider “the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard, irrespective of whether the sentence
falls within the Guidelines range.” United States v. Brantley, 537 F.3d 347,
349 (5th Cir. 2008) (internal quotation marks and citation omitted).
reviewing an upward variance for substantive reasonableness, we consider the
totality of the circumstances, which includes the extent of any variance from
the guidelines range; however, deference is owed to the district court’s
sentencing determination based on the § 3553(a) factors. Id. “A non-Guideline
sentence unreasonably fails to reflect the statutory sentencing factors where it
(1) does not account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor, or (3) represents
a clear error of judgment in balancing the sentencing factors.” United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
Carrillo contends that the district court gave undue weight to his being
on probation for the aggravated sexual assault of his daughter at the time of
the instant offense, when that fact had already been accounted for in the
guidelines calculation. That argument is unavailing. In imposing a nonguidelines sentence, the district court may rely on factors already taken into
account by the Guidelines. Brantley, 537 F.3d at 350; see United States v. Key,
599 F.3d 469, 475 (5th Cir. 2010). Carrillo’s contention that the court gave too
much weight to protecting the public is not supported by the record. Although
Carrillo may have been facing a life sentence in state court on the motion to
revoke his probation, as the district court noted, the outcome of that proceeding
was uncertain, and the probationary sentence imposed for his aggravated
sexual assault of a child was indicative of the seriousness with which the state
court viewed that offense. As the district court noted, § 3553(a)(2)(B) and (C),
two of the factors for consideration in sentencing, are the need for the sentence
Date Filed: 08/22/2017
imposed to afford adequate deterrence and to protect the public from further
crimes. Furthermore he committed the instant offense within two months of
being sentenced to probation, which, as the district court stated, evinced that
Carrillo “[did not] seem to be a good candidate for supervision of any kind.”
Insofar as Carrillo argues that the district court failed to consider his
intellectual capabilities and his own sexual victimization as a child, those facts
were before the court in the second addendum to the presentence report, which
report the court adopted as its own findings. See § 3553(a)(1) (taking into
consideration the characteristics of the defendant).
Turning to the extent of the variance, we have affirmed greater variances
from the guidelines range imposed for similar reasons.
See, e.g., Smith,
440 F.3d at 705-06 (affirming an upward variance of 33 months based on the
defendant’s criminal history and parole status); United States v. Moreno
Molina, 433 F. App’x 304, 305-06 (5th Cir. 2011) (affirming a 36-month upward
departure based on the illegal reentry defendant’s “consistent and significant”
criminal history). Finally, we “may not reverse the district court’s ruling just
because [we] would have determined that an alternative sentence was
appropriate.” Brantley, 537 F.3d at 349.
Carrillo has made no showing that his sentence does not account for a
factor that should have received significant weight, that it gives significant
weight to an irrelevant or improper factor, or that it represents a clear error in
balancing the § 3553(a) factors. See Smith, 440 F.3d at 708. Accordingly, he
has not shown that the district court abused its discretion. See Brantley, 537
F.3d 347, 349; Smith, 440 F.3d at 708.
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