United States v. Emigdio Otero-Mendez ( 2014 )

Case: 13-50464 Document: 00512486475 Page: 1 Date Filed: 01/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50464 January 2, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
EMIGDIO GUADALUPE OTERO-MENDEZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CR-47-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Emigdio Guadalupe Otero-Mendez appeals the sentence imposed
following the revocation of his one-year term of probation for transporting
illegal aliens. The district court sentenced him to serve 10 months in prison,
which was ordered to run consecutively to the sentence imposed for Otero-
Mendez’s new illegal reentry offense. On appeal, Otero-Mendez argues that
the consecutive 10-month within-policy-guidelines revocation sentence was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50464 Document: 00512486475 Page: 2 Date Filed: 01/02/2014
No. 13-50464
substantively unreasonable because it was greater than necessary to achieve
the purposes of 18 U.S.C. § 3553(a) and because it served as punishment for
the new offenses that he had committed.
We review revocation sentences under 18 U.S.C. § 3742(a)(4)’s “plainly
unreasonable” standard. United States v. Kippers, 685 F.3d 491, 496-97 (5th
Cir. 2012). Because the 10-month revocation sentence did not exceed the 10-
year statutory maximum term of imprisonment and was within the applicable
policy range of 4-10 months, it was a legal sentence. See 8 U.S.C.
§ 1324(a)(1)(B)(i); 18 U.S.C. § 3565(a)(2); U.S. SENTENCING GUIDELINES
MANUAL (U.S.S.G.) § 7B1.4, p.s. (2011); United States v. Pena, 125 F.3d 285,
288 (5th Cir. 1997). The district court exercised its discretion to order that the
revocation sentence be served consecutively to the 46-month sentence for the
new illegal reentry conviction. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c), p.s.
& cmt. n.3(C). Because the sentence fell within the statutory range and was
in keeping with the Guidelines’ advice regarding concurrent or consecutive
sentences, it is entitled to a presumption of reasonableness. See United States
v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). Otero-Mendez’s disagreement
with the district court’s weighing of the § 3553(a) factors does not demonstrate
that the sentence imposed was plainly unreasonable. See Gall v. United States,
552 U.S. 38, 51-52 (2007); Kippers, 685 F.3d at 496-97. Consequently, the
judgment of the district court is AFFIRMED.
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