United States v. Juan Gutierrez
359 F. App'x 540
5th Cir.
2010
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*1 Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges

PER CURIAM: [*]

Juan Pablo Gutierrez appeals his 46-month sentence of imprisonment following his guilty plea conviction for eight counts of making a false material statement to a federal firearms licensee. Gutierrez argues that the district court erred by failing to give sufficient reasons for its within-guidelines sentence, and because its reasons were inadequate, the district court might have impermissibly relied on Gutierrez’s failure to cooperate with the Government when determining his sentence.

Because Gutierrez failed to object in the district court to the sufficiency of the reasons for his sentence, our review is limited to plain error. Our review of [1] the record indicates that the district judge referenced the appropriate guidelines range and stated that he did not think that any factors were present that would take Gutierrez’s case outside of the “heartland.” Moreover, the judge stated during the hearing that Gutierrez had committed a “serious offense.” Finally, the judge concluded that he had considered the guidelines and found that a sentence within the guidelines is consistent with the purposes of § 3553(a). Based on the foregoing, we find that the district court’s reasons for Gutierrez’s within-guidelines sentence were sufficient. [2]

Next, Gutierrez argues that the district court may have impermissibly relied on his failure to cooperate when determining his sentence. It is arguable that he failed to object in the district court on this basis: he contended in the district court that his failure to cooperate was not an appropriate factor on which to base an upward departure , but did not assert that it was not an appropriate factor on which to rely in sentencing him within the guidelines . We need not determine whether this means that plain-error or abuse-of-discretion review applies here because Gutierrez is not entitled to relief even assuming that he preserved the issue for review. [3]

For one, the record is devoid of any evidence that the district court relied on Gutierrez’s failure to cooperate when determining Gutierrez’s sentence. [4] Moreover, even if the district court relied on Gutierrez’s failure to cooperate, it did not err because the district court sentenced Gutierrez to a within-guidelines sentence.

To the extent that Gutierrez’s challenge is to the substantive unreasonableness of his sentence, his 46-month, within-guidelines sentence was presumptively reasonable, the district court’s reasons for Gutierrez’s sentence were sufficient, and thus, the totality of the circumstances, considered in light of the § 3553(a) factors, does not show that the sentence imposed by the district court was unreasonable under plain error or abuse-of-discretion review.

Accordingly, the judgment of the district court is AFFIRMED.

Notes

[*] Pursuant to 5 TH C IR 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 5 TH C IR . R. 47.5.4.

[1] See United States v. Lopez-Velasquez , 526 F.3d 804, 806 (5th Cir. 2008), cert. denied 129 S. Ct. 1423, 1429 (2009).

[2] See Rita v. United States , 551 U.S. 338 (2007).

[3] See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir.), cert. denied , 129 S. Ct. 624 (2008).

[4] See United States v. Ronquillo , 508 F.3d 744, 749 (5th Cir. 2007) (stating that the district court, that merely noted its doubt concerning whether the defendant was repentant based on his failure to cooperate with authorities, did not draw an adverse inference based on his failure to cooperate).

[5] See United States v. Alvarez , 51 F.3d 36, 41 (5th Cir. 1995) (“[A] district court may, in determining a specific sentence within the applicable Guidelines range, consider a factor that may itself not support an upward or downward departure.”); cf. Roberts v. United States 445 U.S. 552, 557–58 (1980) (holding that, in determining a sentence, the district court may consider a defendant’s failure to cooperate with an ongoing investigation of the criminal scheme of which the defendant was a part); United States v. Ortega , 188 F. App’x 266, 266 (5th Cir. 2006) (holding that it was not error for the district court to consider the defendant’s lack of cooperation when sentencing him to imprisonment rather than probation); United States v. Dickson , 712 F.2d 952, 955 (5th Cir. 1983) (holding that the district court may consider a defendant’s lack of cooperation in determining the sentence).

[6] United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006)