United States v. Contreras Zamora ( 2022 )

Case: 20-11266 Document: 00516190662 Page: 1 Date Filed: 02/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2022
No. 20-11266
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Juan Manuel Contreras Zamora,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-175-1
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Juan Manuel Contreras Zamora pleaded guilty of illegal reentry after
deportation. He was sentenced to, inter alia, an above-Sentencing-
Guidelines term of 60 months’ imprisonment. The district court ordered
that the sentence be served consecutively to any sentence imposed in
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-11266 Document: 00516190662 Page: 2 Date Filed: 02/03/2022
No. 20-11266
Zamora’s pending federal drug-trafficking-and-weapons case. Subsequently,
Zamora was convicted and sentenced in that case with its much-longer
sentence to be served concurrently with the sentence in this case.
Zamora asserts the court erred in: ordering his sentence of
imprisonment to run consecutively to the then yet-to-be-imposed sentence
in the federal drug-trafficking-and-weapons case; denying his motion to
continue sentencing; and imposing a sentence that was substantively
unreasonable.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to
an ultimate sentence is reviewed for substantive reasonableness under an
abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez,
564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in
district court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008).
Because Zamora did not object to the imposition of a consecutive
sentence, review for that claim is only for plain error. E.g., United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Zamora
must show a forfeited plain error (clear or obvious error, rather than one
subject to reasonable dispute) that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have
the discretion to correct the reversible plain error, but generally should do so
only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id.2
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No. 20-11266
As the Government concedes, it was a clear or obvious error to order
that the sentence run consecutively to an anticipated, but not-yet-imposed,
federal sentence. See United States v. Nava, 762 F.3d 451, 452 (5th Cir. 2014)
(explaining “order to run . . . sentence consecutively with the pending federal
sentence is clear and obvious error under” plain-error review). As reflected
supra, however, Zamora cannot show his substantial rights were affected
because the court in the drug-trafficking-and-weapons case later imposed a
sentence that is concurrent to the sentence in this illegal-reentry case. See id.
at 452–53.
Relatedly, Zamora asserts the court erred in denying his motion to
continue sentencing so that the two cases could be resolved at the same time.
Denial of a continuance is reviewed for abuse of discretion. United States v.
Peden, 891 F.2d 514, 519 (5th Cir. 1989). Because, as also reflected supra,
Zamora cannot show he was prejudiced by this ruling, he cannot show an
abuse of discretion. See id. at 519 (explaining “to prevail on [appeal of
continuance-motion denial, defendant] must demonstrate that the district
court abused its discretion and that he suffered prejudice” (citations
omitted)).
Finally, Zamora asserts that the court’s upward variance from the
Guidelines sentencing range of 10-to-16-months was substantively
unreasonable. Although Zamora contends his previous illegal-reentry
conviction has been accounted for by recent amendments to Guideline
§ 2L1.2(b)(1)(A) (unlawfully entering or remaining in the United States), his
recidivism was not the only reason for the court’s upward variance. See
United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008) (stating district
court may consider factors incorporated by Guidelines in imposing non-
Guidelines sentence). Nor has Zamora shown, as he contends, that his
sentence creates an unwarranted disparity with the sentences imposed on
similarly-situated defendants. Needless to say, due deference is given to the
3
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No. 20-11266
court’s decision that the statutory sentencing factors justify its variance in
the light of the facts and circumstances of this case. United States v. Gerezano-
Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (explaining, our court “consider[s]
the totality of the circumstances, including the extent of any variance from
the Guidelines range, to determine whether, as a matter of substance, the
sentencing factors in [18 U.S.C. §] 3553(a) support the sentence” (citations
omitted)); Broussard, 669 F.3d at 551 (noting our court gives “due deference
to the district court’s decisions that the § 3553(a) factors, on a whole, justify
the extent of the variance” (citation omitted)).
AFFIRMED.
4