United States v. Bermudez ( 2023 )

Case: 22-10464 Document: 00516647583 Page: 1 Date Filed: 02/15/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10464
Summary Calendar FILED
____________ February 15, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Victor Alfredo Bermudez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-440-2
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Victor Alfredo Bermudez appeals the above-Guidelines 30-months’
sentence imposed following his guilty-plea conviction for conspiracy to
possess unregistered firearms, in violation of 18 U.S.C. § 371, and possession
of unregistered firearms, in violation of 26 U.S.C. §§ 5841, 5861(d). He
contends the sentence is both procedurally and substantively unreasonable.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10464 Document: 00516647583 Page: 2 Date Filed: 02/15/2023
No. 22-10464
Bermudez maintains his sentence was procedurally unreasonable
because the district court failed to sufficiently explain its reasons supporting
the upward variance. The parties dispute whether Bermudez preserved this
challenge. Because he objected to the “substance of the sentence, but not
the manner in which it was explained”, he failed to preserve this issue.
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
Because he did not preserve the procedural-unreasonableness issue in
district court, review is only for plain error. E.g., United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Bermudez 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.The court thoroughly considered Bermudez’ mitigating arguments, as
referenced both in its Statement of Reasons and its granting the six-month
sentencing credit he requested. The court explained, however, that a
variance was necessary to address: the seriousness of his offense conduct;
the Sentencing Guidelines’ failure to account for the true nature of the
offense; the need to provide adequate deterrence given the prior leniency
Bermudez had received; and the need to provide just punishment and protect
the public. E.g., United States v. Sanchez, 667 F.3d 555, 568 (5th Cir. 2012)
(upholding district court’s explanation for sentence as adequate where
record showed it considered positions of counsel and defendant’s sentencing
memorandum setting forth mitigating arguments).
Inasmuch as Bermudez maintains the court should have separately or
specifically addressed his mitigating arguments when imposing the upward
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No. 22-10464
variance, he fails to demonstrate the requisite clear-or-obvious procedural
error. E.g., United States v. Becerril-Pena, 714 F.3d 347, 351–52 (5th Cir. 2013)
(holding district court did not commit procedural error by failing to
specifically address defendant’s mitigating arguments). Even assuming the
court’s explanation was clear-or-obvious procedural error, Bermudez does
not contend, much less demonstrate a reasonable probability, that a more
detailed explanation would have resulted in a lesser sentence; therefore, he
fails to make the requisite showing that his substantial rights were affected.
E.g., Mondragon-Santiago, 564 F.3d at 364–65.
As for his substantive-reasonableness challenge, 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, as in
this instance, no such procedural error exists, a properly preserved objection
to an ultimate sentence, as in this instance, 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).
Bermudez’ challenge to the substantive reasonableness of his
sentence fails. As noted supra, the district court considered the Guidelines
range and Bermudez’ mitigation assertions but concluded: the Guidelines
range did not reflect the true nature of the offense conduct; and an above-
Guidelines sentence was warranted to reflect the seriousness of the offense,
to afford adequate deterrence, and to provide public protection. See 18
U.S.C. § 3553(a)(1), (a)(2)(A)–(C). We defer to that determination. E.g.,
Gall, 552 U.S. at 51 (“The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
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reversal of the district court.”). Along that line, and regarding his assertions
that the district court failed to give significant weight to his history and
characteristics, our court will not reweigh the § 3553 sentencing factors. E.g.,
United States v. Heard, 709 F.3d 413, 435 (5th Cir. 2013) (declining to
reweigh § 3553(a) sentencing factors on substantive-reasonableness review).
AFFIRMED.
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