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United States v. Antonio Reyes ( 2019 )


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  •      Case: 19-40066      Document: 00515067176         Page: 1    Date Filed: 08/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-40066                             FILED
Summary Calendar                      August 7, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTONIO NAVAREZ REYES, also known as Tonio,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-252-7
Before BENAVIDES, DENNIS, and OLDHAM, Circuit Judges.
PER CURIAM: *
Antonio Navarez Reyes filed a
    28 U.S.C. § 2255
     motion challenging the
sentence imposed upon his conviction for conspiracy to distribute and to
possess with the intent to distribute methamphetamine and was sentenced to
188 months of imprisonment. The district court granted Navarez Reyes’s
§ 2255 motion, vacated his sentence, and ordered resentencing.                             At the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40066     Document: 00515067176      Page: 2   Date Filed: 08/07/2019
No. 19-40066
resentencing proceeding, the district court sentenced Navarez Reyes within
the guidelines range to 151 months of imprisonment. He appeals.
Navarez Reyes argues that the district court plainly erred in imposing
his sentence by failing to indicate that it had considered evidence of his
postsentencing rehabilitative efforts, as required by Pepper v. United States,
    562 U.S. 476
     (2011). As he acknowledges, his failure to object on this ground
in the district court results in plain-error review.        See United States v.
Mondragon-Santiago,
    564 F.3d 357
    , 361 (5th Cir. 2009).
To show the requisite plain error, Navarez Reyes must demonstrate a
clear or obvious forfeited error that affected his substantial rights. See Puckett
v. United States,
    556 U.S. 129
    , 135 (2009). If he makes that showing, this court
has the discretion to correct the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
    Id.
     (internal quotation
marks, brackets, and citation omitted).
Navarez Reyes has not shown that any error was clear or obvious
because, though Pepper permits a district court to consider postsentencing
rehabilitative conduct, it is not clear that Pepper mandates consideration of
such conduct. See Pepper,
    562 U.S. at 490
    ; United States v. Warren,
    720 F.3d 321
    , 326-27 (5th Cir. 2013). Moreover, given the permissible factors of
    18 U.S.C. § 3553
    (a) relied upon by the sentencing court, Navarez Reyes cannot
show that any error affected his substantial rights. See United States v. Jones,
    444 F.3d 430
    , 438 (5th Cir. 2006).
Accordingly, the district court’s judgment is AFFIRMED.
2