United States v. Edmundo Guerrero-Gonzalez , 614 F. App'x 779 ( 2015 )

Case: 14-11307 Document: 00513172028 Page: 1 Date Filed: 08/27/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11307
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 27, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
EDMUNDO GUERRERO-GONZALEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:14-CR-25-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Edmundo Guerrero-Gonzalez appeals the sentence imposed upon his
illegal reentry conviction. For the first time on appeal, Guerrero-Gonzalez
argues that the 57-month term of imprisonment, which is at the top of the
advisory guidelines range, is substantively unreasonable and that the alcohol
abstinence special condition of supervised release is unreasonable. We review
his arguments for plain error. See Puckett v. United States, 556 U.S. 129, 135
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-11307 Document: 00513172028 Page: 2 Date Filed: 08/27/2015
No. 14-11307
(2009); see also United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).
The within-guidelines sentence is presumptively reasonable. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Guerrero-Gonzalez has not
demonstrated that the 57-month term of imprisonment failed to account for a
sentencing factor that should have received significant weight. Thus, he has
not rebutted the presumption that the within-guidelines sentence is
reasonable. See Cooks, 589 F.3d at 186.
Guerrero-Gonzalez argues that the special condition of supervised
release that requires his total abstinence from the use of alcohol is plainly
unreasonable. The Government argues that this issue is not ripe for review.
We conclude that the ripeness issue is governed by United States v. Ellis, 720
F.3d 220, 225-26 (5th Cir. 2013) where we addressed the merits of various
conditions of supervised release, such as prohibitions on use of a computer, but
found the challenge to possible mental health treatment unripe for review
because such treatment may never occur. Here, the challenged condition is
intended to take effect immediately upon release. Thus, we decline the
Government’s argument that we should extend the reasoning of United States
v. Segura-Resendez, 515 F. App’x 316, 319 (5th Cir. 2013), to this case. See also
United States v. Duke, 788 F.3d 392, 401 (5th Cir. 2015) (“[T]he possibility of
future modification [of a condition of supervised release] has no bearing on
whether the district court abused its discretion today.”); see also 18 U.S.C. §
3624(e); United States v. Garcia-Rodriguez, 640 F.3d 129, 133 (5th Cir. 2011).
The district court has wide discretion to impose any special condition of
supervised release it considers appropriate, to the extent that such condition
(1) is reasonably related to certain sentencing factors, (2) involves no greater
deprivation of liberty than is reasonably necessary to meet certain sentencing
purposes; and (3) is consistent with any relevant policy statement. See United
2
Case: 14-11307 Document: 00513172028 Page: 3 Date Filed: 08/27/2015
No. 14-11307
States v. Weatherton, 567 F.3d 149, 152-53 (5th Cir. 2009); U.S.S.G. § 5D1.3(b);
18 U.S.C. § 3583(d)(2). As shown by Guerrero-Gonzalez and the Government’s
arguments, whether the district court erred in imposing the alcohol abstinence
special condition is subject to reasonable dispute. Accordingly, in this case,
even if the court erred, any error is not clear or obvious. See Puckett, 556 U.S.
at 135 (“[T]he legal error must be clear or obvious, rather than subject to
reasonable dispute.”); see also United States v. Carrillo, 660 F.3d 914, 930 (5th
Cir. 2011).
AFFIRMED.
3