United States v. Coronado-Rodriguez ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 31, 2009
No. 08-50812
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN ANTONIO CORONADO-RODRIGUEZ
Defendant-Appellant
Consolidated with
No. 08-50863
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN ANTONIO CORONADO-RODRIGUEZ
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:04-CR-221-ALL
USDC No. 1:08-CR-115-ALL
No. 08-50812
c/w No. 08-50863
Before PRADO, ELROD and SOUTHWICK, Circuit Judges.
PER CURIAM:*
In these consolidated appeals, Juan Antonio Coronado-Rodriguez
(Coronado) challenges the sentence imposed following his guilty plea conviction
for being unlawfully present in the United States following removal and the
sentence imposed following the revocation of a previously imposed term of
supervised release. Coronado argues that his 41-month sentence for being
unlawfully present in the United States following removal was unreasonable.
The Government argues that Coronado’s appeal from his sentence for being
unlawfully present in the United States following removal should be dismissed
because Coronado did not file a timely notice of appeal. Coronado does not
address the issue of the timeliness of his notice of appeal.
Coronado’s notice of appeal in his new criminal case was filed after the
expiration of the time for filing a timely notice of appeal and the time during
which the district court could have extended the time for filing a notice of appeal.
See F ED. R. A PP. P. 4(b)(1)(A)(i), (b)(4). Accordingly, we must dismiss Coronado’s
appeal from his sentence for being unlawfully present in the United States as
untimely filed. See Burnley v. City of San Antonio, 470 F.3d 189, 192 n.1 (5th
Cir. 2006).
Coronado argues that the 24-month consecutive sentence imposed upon
the revocation of his supervised release was unreasonable and plainly
unreasonable because the sentence was supposed to be a penalty for his breach
of trust for violating the terms of his supervised release, not additional
punishment for his new offense. He contends that a 12-month sentence would
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
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No. 08-50812
c/w No. 08-50863
have been sufficient, but not greater than necessary, to achieve the sentencing
goals of 18 U.S.C. § 3553(a).
Because Coronado did not object to the sentence in the district court, we
review for plain error only. See United States v. Jones, 484 F.3d 783, 792 (5th
Cir. 2007). To show plain error, Coronado must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.While the 24-month sentence exceeded the advisory guidelines range as
calculated by the district court, the sentence did not exceed the statutory
maximum. See 18 U.S.C. § 3583(e)(3). Furthermore, Coronado’s supervised
release violation appears to have been a Grade B violation, making the correct
guidelines sentence range 21-24 months of imprisonment. Given Coronado’s
extensive criminal history, Coronado has not shown that the sentence
constituted plain error. See Jones, 484 F.3d at 792-93; cf. United States v.
Smith, 417 F.3d 483, 491-92 (5th Cir. 2005). Accordingly, the sentence imposed
upon the revocation of Coronado’s supervised release is affirmed.
APPEAL DISMISSED IN PART; AFFIRMED IN PART.
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