United States v. Juan Garcia-Lemus
509 F. App'x 324
5th Cir.
2013
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Docket

UNITED STATES of America, Plaintiff-Appellee v. Juan Angel GARCIA-LEMUS, Defendant-Appellant.

No. 12-40353

United States Court of Appeals, Fifth Circuit

Jan. 28, 2013.

324

Summary Calendar.

Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.

Before JONES, DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Appellant, Juan Angel Garcia-Lemus (“Garcia-Lemus“) pled guilty to being an alien found in the United States after deportation and having been convicted of a felony. 8 U.S.C. § 1326(a) and (b)(1). He was represented by a Federal Public Defender and was sentenced to a term of 24 months imprisonment followed by a three year supervised release term. He made no objection to the sentence in the trial court. On appeal, he challenges only the term of supervised release.

We review his appeal under the plain error standard. Fed. R.Crim. Pro. 52(b); . His issues, centered on the proposition that imposing supervised release on a deportable alien constitutes an upward departure, are now foreclosed by this court‘s recent decision in . The court committed no error, much less plain error, in failing to treat the supervised release term as an upward departure in light of the new guideline § 5D1.1(c) (stating that a term of supervised release should not “ordinarily” be imposed on a removable alien). The final sentence, imposed within the guidelines range, is presumptively reasonable.

There remains only the question whether the district court‘s failure to explain reasons for imposing supervised release merits the relief of resentencing under the plain error standard. We hold it does not. The sentencing hearing here was perfunctory, punctuated mainly by the government‘s reminder that Garcia-Lemus has a criminal record including 11 prior convictions and 2 prior illegal reentries at times when he was already serving supervised release terms. Garcia-Lemus sought mercy as to the term of imprisonment only. Garcia-Lemus make no attempt to demonstrate why this technical omission, if error at all, affected his substantial rights or, if left uncorrected, would seriously affect the fairness, integrity, or public reputation of judicial proceedings. . No plain error is shown.

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee v. Norberto AQUINO-LOPEZ, Defendant-Appellant.

No. 12-50440

United States Court of Appeals, Fifth Circuit

Jan. 28, 2013.

325

Summary Calendar.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, San Antonio, TX, for Plaintiff-Appellee.

Donna F. Coltharp, Assistant Federal Public Defender, Federal Public Defender‘s Office, San Antonio, TX, for Defendant-Appellant.

Before WIENER, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

For the first time on appeal, Defendant-Appellant Norberto Aquino-Lopez asserts that his 60-month guidelines sentence for illegal reentry is substantively unreasonable. Aquino-Lopez contends that, in setting his sentence, the district court failed to recognize that illegal reentry is a nonviolent offense, that he committed the offense for the comprehensible reason of seeking to avoid gang involvement and violence in El Salvador, and that he plans to move to Spain to avoid further illegal reentry offenses.

Although we ordinarily review sentences for reasonableness under an abuse-of-discretion standard, we review here for plain error because Aquino-Lopez did not object to his sentence. See . Although he disagrees that such an objection is necessary to preserve error, Aquino-Lopez recognizes that we have ruled otherwise and raises the issue only to preserve it for further review. See . Similarly, he asserts that the presumption of reasonableness should not apply to his sentence because the illegal reentry guideline is not supported by empirical data or national experience, but recognizes that this argument is foreclosed as well. See .

The district court here implicitly adopted the presentence report, which described Aquino-Lopez‘s personal history and characteristics. The court also heard Aquino-Lopez‘s arguments for a below-guidelines sentence as well as his allocution. After considering the presentence report, the Guidelines, and Aquino-Lopez‘s personal circumstances, the district court determined that a 60-month sentence was appropriate. Aquino-Lopez has failed to

Notes

*
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. 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.