United States v. Edgar Bernal-Gloria ( 2018 )

Case: 17-11273 Document: 00514570683 Page: 1 Date Filed: 07/25/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-11273 FILED
Summary Calendar July 25, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
EDGAR BERNAL-GLORIA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-80-1
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Edgar Bernal-Gloria appeals the sentence imposed following his guilty
plea conviction for illegal reentry. He contends that his 21-month sentence of
imprisonment, which was above the advisory guidelines range, is substantively
unreasonable because the district court refused to adjust his sentence to
account for the time he spent in immigration custody. Bernal-Gloria argues
that an unwarranted sentencing disparity results, contrary to 18 U.S.C.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11273
§ 3553(a)(6), because defendants in illegal reentry cases, unlike other criminal
defendants, are not granted credit for all of the time they spend in official
detention.
Generally, we review sentences for reasonableness, under an abuse-of-
discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). The
Government contends that plain error review applies because Bernal-Gloria
did not raise in the district court the precise argument he raises here. We need
not decide whether Bernal-Gloria preserved the issue for appellate review
because he is not entitled to relief on his substantive-reasonableness challenge
regardless of the standard of review. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
A defendant is given credit toward his federal sentence for time spent in
official detention before being received into federal custody that has not been
credited against another sentence. See 18 U.S.C. § 3585(b). However, a district
court is not authorized to decide the amount of credit that a defendant receives.
United States v. Wilson, 503 U.S. 329, 335 (1992); Leal v. Tombone, 341 F.3d
427, 428 (5th Cir. 2003). Rather, the Attorney General, through the Bureau of
Prisons, determines what credit, if any, is awarded to prisoners for time spent
in custody prior to the commencement of their federal sentences. Leal,
341 F.3d at 428.
Bernal-Gloria has not shown that his above-guidelines sentence “(1) does
not account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006). The record reflects that the district court
considered Bernal-Gloria’s arguments for sentencing leniency, including his
request for a reduced sentence in light of the time that he was in immigration
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No. 17-11273
custody, and determined that an above-guidelines sentence was merited in
light of the factors listed in § 3553(a); the district court was specifically
troubled by Bernal-Gloria’s numerous illegal reentries and other prior criminal
convictions and relied on this conduct when imposing a sentence above the
guidelines range. His mere disagreement with the weight that the district
court gave the sentencing factors does not justify reversal of his sentence. See
Gall, 552 U.S. at 51.
AFFIRMED.
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