United States v. Humberto Ontiveros-Perales
670 F. App'x 207
| 5th Cir. | 2016Background
- Defendant Humberto Ontiveros-Perales pleaded guilty to being an alien in possession of and exporting ammunition in interstate commerce, in violation of 18 U.S.C. § 922(g)(5)(B) and § 924(a)(2).
- The district court calculated the Guidelines range and imposed an 18-month sentence at the bottom of that range.
- Ontiveros sought a below-Guidelines sentence at sentencing, citing his eight years as a police investigator in Mexico, acquisition of ammunition for target practice for himself and other officers, letters of support, and other mitigating personal history.
- The district court considered the presentence report, defense submissions, allocution, and expressed concern that some ammunition was designed for assault rifles, which the court found atypical for target practice.
- Ontiveros did not object to the substantive reasonableness of the within-Guidelines sentence after it was imposed; he raises that issue on appeal, invoking plain-error review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the substantive reasonableness of a within-Guidelines sentence can be reviewed where no contemporaneous objection was made | Ontiveros: sentence greater than necessary given mitigating circumstances and history | Government: no plain-error shown because district court considered mitigating evidence and imposed Guidelines sentence | Court: Review is for plain error; Ontiveros failed to show plain error affecting substantial rights and sentence is affirmed |
| Whether the district court failed to consider mitigating evidence and personal history | Ontiveros: court did not adequately reflect his personal/professional history and mitigation | Government: court considered PSR, letters, allocution, and made individualized decision | Court: Record shows the court considered relevant materials; presumption of reasonableness for Guidelines sentence not rebutted |
| Standard of review applicable to preserved vs. unpreserved sentencing claims | Ontiveros: (preserved below) argued below for variance; on appeal contends substantive unreasonableness | Government: preserved objections reviewed for abuse of discretion; unpreserved subject to plain-error review | Court: Preserved issues reviewed for reasonableness; unpreserved claims reviewed for plain error under Puckett |
| Whether sentencing court misapplied the Guidelines or made clearly erroneous factual findings | Ontiveros: implies Guidelines application led to excessive sentence | Government: no misapplication; factual findings supported | Court: No clear error shown; Guidelines properly applied and factual findings supported |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (sentencing review framework; Guidelines advisory and need for individualized consideration)
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error standard for forfeited objections)
- Rita v. United States, 551 U.S. 338 (2007) (presumption of reasonableness for within-Guidelines sentences)
- United States v. Cisneros-Gutierrez, 517 F.3d 751 (5th Cir. 2008) (de novo review of Guidelines application; clear-error review of facts)
- United States v. Lopez–Velasquez, 526 F.3d 804 (5th Cir. 2008) (analysis of presumption of reasonableness and district court consideration)
- United States v. Cooks, 589 F.3d 173 (5th Cir. 2009) (affirming within-Guidelines sentence where no plain error shown)
- United States v. Broussard, 669 F.3d 537 (5th Cir. 2012) (procedural posture on preserved vs. unpreserved sentencing objections)
AFFIRMED.