United States v. Omar Alonso-Martinez ( 2017 )

Case: 17-40025 Document: 00514097275 Page: 1 Date Filed: 08/01/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40025 FILED
Summary Calendar August 1, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OMAR ALONSO-MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:16-CR-505-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Omar Alonso-Martinez appeals the 36-month sentence imposed
following his guilty plea conviction for illegal reentry. The sentence represents
an upward variance from the applicable guidelines range of 15-21 months. On
appeal, Alonso-Martinez contends that his sentence is substantively
unreasonable. He asserts that the district court gave undue weight to his
criminal history because his prior federal conviction for possession with intent
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-40025
to distribute or dispense heroin was not particularly serious, given the absence
of any aggravating factors tied to that offense. He also points out that the
district court failed to mention favorable factors, including the absence of a
prior illegal reentry conviction and his benign, family-based motives for
returning to the United States.
To the extent that Alonso-Martinez’s appellate brief may be construed as
challenging the sufficiency of the reasons provided by the district court, he did
not preserve this argument, and we review for plain error. United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Alonso-Martinez has
not shown that the reference to a single 18 U.S.C. § 3553(a) factor, rather than
multiple factors, constitutes a clear or obvious error affecting his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
As for Alonso-Martinez’s allegations of substantive unreasonableness,
we review such allegations, in light of the § 3553(a) factors, under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 49-51 (2007). The
record confirms that the district court considered counsel’s arguments and
made an individualized assessment of the § 3553(a) factors, determining that
the seriousness of Alonso-Martinez’s prior offense outweighed his benign
motives for returning to the United States and warranted an above-guidelines
sentence. See id. at 49-50; § 3553(a)(1). Alonso-Martinez has not shown that
the court’s focus on his criminal history and the resulting decision to sentence
him above the advisory guidelines range failed to take into account “a factor
that should have received significant weight,” gave weight “to an irrelevant or
improper factor,” or represented “a clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
As for the increase to 36 months from the 21-month top of the guidelines
range, this court has upheld variances and departures greater than the
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No. 17-40025
increase to Alonso-Martinez’s sentence. See United States v. Jones, 444 F.3d
430, 433, 441-42 (5th Cir. 2006). Alonso-Martinez has failed to show that the
district court’s justification for the imposed sentence was insufficiently
compelling. See Smith, 440 F.3d at 707. Consequently, the judgment of the
district court is AFFIRMED.
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