United States v. Victor Alcero-Sales , 517 F. App'x 258 ( 2013 )

Case: 12-50829 Document: 00512183834 Page: 1 Date Filed: 03/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2013
No. 12-50829
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR EDGARDO ALCERO-SALES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-560-1
Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
Victor Edgardo Alcero-Sales (Alcero) was convicted of illegal reentry, in
violation of 8 U.S.C. § 1326. He was sentenced to 14 months of imprisonment
and three years of supervised release. Alcero’s term of supervised release was
revoked after he was found unlawfully in this country and convicted of another
illegal reentry offense. He challenges the substantive reasonableness of the
consecutive eight month sentence he received upon revocation of his supervised
release on the basis that it is greater than necessary to achieve the factors set
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50829 Document: 00512183834 Page: 2 Date Filed: 03/22/2013
No. 12-50829
forth in 18 U.S.C. § 3553(a). He argues that the district court did not consider
all of the § 3553(a) factors, as it was required to do, and categorically refused to
consider a concurrent sentence.
Ordinarily, this court reviews revocation sentences under 18 U.S.C.
§ 3742(a)(4)’s “plainly unreasonable” standard. United States v. Miller, 634 F.3d
841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011). Because Alcero did not
object to the reasonableness of his revocation sentence in the district court, our
review is for plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60
(5th Cir. 2009).
Plain error requires there be a forfeited error that is clear or obvious and
that affects the defendant’s substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If such a showing is made, the court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.The revocation sentence imposed in the instant case both fell within the
advisory range and was in keeping with the Guidelines’ advice regarding
concurrent or consecutive sentences. See United States v. Jones, 484 F.3d 783,
792 (5th Cir. 2007); U.S.S.G. § 7B1.3(f)). The sentence is, therefore, entitled to
an appellate presumption of reasonableness. See United States v. Lopez-
Velasquez, 526 F.3d 804, 809 (5th Cir. 2008).
Further, even if the district court committed obvious or clear error with
respect to the § 3553(a) factors, Alcero cannot show his substantial rights were
affected because he fails to show that with other consideration of the factors he
would have received a sentence below the policy statement range of
imprisonment. See United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
Thus, Alcero has not shown that the revocation sentence imposed constituted
plain error. See Puckett, 556 U.S. at 135; Whitelaw, 580 F.3d at 259-60.
AFFIRMED.
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