United States v. Bertulio Moreno-Alvarez ( 2018 )

Case: 17-11090 Document: 00514703298 Page: 1 Date Filed: 10/30/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-11090 FILED
Summary Calendar October 30, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BERTULIO MORENO-ALAVAREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:17-CR-24-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Bertulio Moreno-Alvarez appeals the 48-month above-guidelines
sentence imposed in connection with his conviction for possession of a firearm
by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). He
challenges the substantive reasonableness of his sentence, arguing that the
district court gave undue weight to his prior criminal history and did not give
sufficient weight to his family circumstances.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11090
In reviewing a non-guidelines sentence for substantive reasonableness,
we consider “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 section 3553(a) support the sentence.”
United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal
quotation marks and citation omitted). While the district court commented on
Moreno-Alvarez’s criminal history, the court also noted that Moreno-Alvarez
had been removed from the United States on four occasions and continued to
enter the country illegally. The district court heard Moreno-Alvarez’s reasons
for wishing to return to El Salvador. However, the record reflects that the
district court was not persuaded and that it relied on permissible 18 U.S.C. §
3553(a) factors in determining that an above-guidelines sentence was
appropriate, including the history and characteristics of Moreno-Alvarez, the
nature and circumstances of the offense, the need to promote respect for the
law, the need to provide adequate deterrence, and the need to protect the public
from further crimes. Thus, the decision to vary above the advisory guidelines
range was based on permissible factors that advanced the objectives set forth
in § 3553(a). See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
Additionally, although the 48-month sentence is twice the top of the
guidelines range, we have upheld much greater variances. See, e.g., United
States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United States v. Brantley,
537 F.3d 347, 348-50 (5th Cir. 2008). Based on the totality of the
circumstances, including the significant deference that is due to a district
court’s consideration of the § 3553(a) factors, the sentence imposed was
reasonable. See Gerezano-Rosales, 692 F.3d at 400.
Moreno-Alvarez also challenges the statute of conviction, arguing that it
violates the Second Amendment and the Fifth Amendment’s Due Process
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No. 17-11090
Clause with respect to his equal protection rights. Because he did not raise
these arguments in the district court, we review for plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009); United States v. Coil, 442 F.3d 912,
915-16 (5th Cir. 2006). Moreno-Alvarez fails to show plain error. See Puckett,
536 U.S. at 135; United States v. Portillo-Munoz, 643 F.3d 437, 440-42 & n.4
(5th Cir. 2011); United States v. Mirza, 454 F. App’x at 249, 258-59 (5th Cir.
2011).
Accordingly, the judgment of the district court is AFFIRMED.
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