United States v. Eloy Hernandez-Beltran , 544 F. App'x 469 ( 2013 )

Case: 12-40594 Document: 00512424413 Page: 1 Date Filed: 10/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 30, 2013
No. 12-40594
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ELOY HERNANDEZ-BELTRAN, also known as Eloy Hernandez-Zepeda,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CR-1214-2
Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM:*
Eloy Hernandez-Beltran (Hernandez) pleaded guilty to conspiracy to
transport unlawful aliens within the United States, in violation of 8 U.S.C.
§ 1324. The district court found that the seriousness of Hernandez’s criminal
history and the likelihood that he would commit other crimes was substantially
underrepresented by his criminal history category as calculated in the
presentence report (PSR). Thus, pursuant to U.S.S.G. § 4A1.3, the district court
departed upward from the advisory guidelines imprisonment range of 21 to 27
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-40594 Document: 00512424413 Page: 2 Date Filed: 10/30/2013
No. 12-40594
months and sentenced Hernandez to 40 months of imprisonment and a three-
year term of supervised release. Hernandez filed a timely notice of appeal.
Pertinent to this appeal, the PSR recited allegations made by one of the
female aliens being transported in this case that Hernandez had tried to rape
her and that she was able to fend him off because he was drunk. In the sole
issue presented for review, Hernandez argues that the district court
impermissibly considered that attempted-rape allegation in deciding to depart
upward and in selecting his sentence because it was undetailed and
uncorroborated. He concedes that, because he did not raise this issue in the
district court, review is only for plain error. See United States v. Gutierrez, 635
F.3d 148, 152 (5th Cir. 2011). Under that standard, Hernandez must show a
forfeited error that is clear or obvious and that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
we have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
In deciding to depart upward, the district court considered the number and
nature of Hernandez’s prior, unscored convictions as well as the lack of respect
he has demonstrated for the laws of this country. Hernandez does not argue
that these factors were improperly considered or that there was insufficient
reliable evidence to support the district court’s consideration of those factors.
Even if the district court erred in considering the attempted-rape
allegation, relief is not warranted unless Hernandez can show that the error
affected his substantial rights. See id. He has not made this showing. He points
to nothing in the record to support his conclusional assertion that there is a
reasonable probability that, but for the district court’s error, he would have
received a lower sentence. See United States v. Davis, 602 F.3d 643, 647 (2010).
Similarly, Hernandez’s conclusional assertions with respect to the extent of the
district court’s 13-month departure do not demonstrate reversible plain error.
See Puckett, 556 U.S. at 135.
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Case: 12-40594 Document: 00512424413 Page: 3 Date Filed: 10/30/2013
No. 12-40594
AFFIRMED.
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