United States v. Victor Cerda Contreras
669 F. App'x 234
| 5th Cir. | 2016Background
- Defendant Victor Cerda Contreras pleaded guilty to illegal reentry after deportation (8 U.S.C. § 1326).
- The Sentencing Guidelines recommended 24–30 months; the district court imposed a 36‑month upward variance.
- Contreras did not object at sentencing to the substantive reasonableness of the variance, invoking plain‑error review on appeal.
- Contreras argued the upward variance was greater than necessary because his prior convictions were remote and nonviolent (DWI/license offenses) and his illegal reentry was nonviolent.
- The district court relied on Section 3553(a) factors (including unscored prior convictions, prior illegal reentry, need for deterrence, respect for law, public protection, and correctional needs) to justify the 6‑month upward variance.
- The Fifth Circuit affirmed, finding the variance was based on permissible § 3553(a) considerations and was not substantively unreasonable under plain‑error review.
Issues
| Issue | Contreras's Argument | Government's Argument | Held |
|---|---|---|---|
| Standard of review | Plain‑error applies because no contemporaneous objection | Same — district court’s decision reviewed for plain error | Plain‑error applied (citing precedent) |
| Substantive reasonableness of 36‑month sentence | Variance > necessary: priors remote, nonviolent; reentry nonviolent and not serious | Variance based on permissible § 3553(a) factors including unscored priors and deterrence | Affirmed: variance substantively reasonable; no plain error |
| Relevance of nonviolent nature of offense | Nonviolent offense undermines need for upward variance | Court can consider seriousness and prior conduct regardless of violence | Nonviolent status does not render variance plainly erroneous |
| Personal circumstances | Mitigating personal facts should reduce sentence | Personal background may explain conduct but doesn’t negate need for variance | Personal circumstances insufficient to show plain error |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (standard for reviewing sentencing reasonableness)
- United States v. Peltier, 505 F.3d 389 (5th Cir. 2007) (plain‑error review when no objection at sentencing)
- United States v. Williams, 517 F.3d 801 (5th Cir. 2008) (district court may vary based on § 3553(a) factors)
- United States v. Fraga, 704 F.3d 432 (5th Cir. 2013) (unscored priors and prior illegal reentry support variance for deterrence)
- United States v. McElwee, 646 F.3d 328 (5th Cir. 2011) (small upward variances near Guidelines range permissible)
- United States v. Saldana, 427 F.3d 298 (5th Cir. 2005) (reasonableness of variances near guideline range)
- United States v. Juarez‑Duarte, 513 F.3d 204 (5th Cir. 2008) (nonviolent nature of offense does not preclude variance)
- United States v. Aguirre‑Villa, 460 F.3d 681 (5th Cir. 2006) (same)