United States v. Guillermo Vega-Botello ( 2019 )

Case: 18-11358 Document: 00515011010 Page: 1 Date Filed: 06/26/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11358 FILED
Summary Calendar June 26, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GUILLERMO VEGA-BOTELLO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:18-CR-39-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Guillermo Vega-Botello pled guilty to illegal reentry, in violation of 8
U.S.C. § 1326. The district court varied upward from the advisory guidelines
range and sentenced him to 36 months in prison. He appeals his sentence.
Vega-Botello contends the district court erred in concluding that he
qualified for the penalties of Section 1326(b)(2) and thereby was subject to a
statutory maximum sentence of 20 years in prison. He asserts that none of his
previous convictions — including his conviction in Washington for second-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11358 Document: 00515011010 Page: 2 Date Filed: 06/26/2019
No. 18-11358
degree assault — constitute an aggravated felony under Section 1326(b)(2).
Vega-Botello argues that the district court’s misunderstanding of the statutory
maximum influenced its sentencing decision and likely prompted it to impose
a sentence that exceeded the applicable guidelines range.
Because Vega-Botello did not raise these arguments in the district court,
review is for plain error only. See United States v. Mondragon-Santiago, 564
F.3d 357, 368 (5th Cir. 2009). To establish plain error, he must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have
the discretion to correct the error if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. See id.
Even assuming that none of Vega-Botello’s prior convictions constitutes
an aggravated felony, he has not shown that any error affected his substantial
rights. He has not demonstrated that the district court’s understanding of the
relevant statutory maximum affected its decision whether to impose an above-
guidelines sentence. See Mondragon-Santiago, 564 F.3d at 369. The district
court provided reasons for its selection of sentence, including Vega-Botello’s
criminal history and the pertinent 18 U.S.C. § 3553(a) factors, and it did not
reference the statutory maximum or suggest that the statutory range affected
its sentencing decision. Also, the sentence imposed was well below the 10-year
statutory maximum set forth in otherwise applicable Section 1326(b)(1). We
do not read Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016), as
requiring a different result.
Because Vega-Botello’s judgment cites only Section 1326, references no
subsection of Section 1326(b), and does not state that Vega-Botello was
convicted of an aggravated felony, there is no error that requires the judgment
to be corrected or reformed. See United States v. Ovalle-Garcia, 868 F.3d 313,
314 (5th Cir. 2017). AFFIRMED.
2