United States v. Becerra-Fuentes ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2009
No. 08-40952
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO BECERRA-FUENTES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:08-CR-156-ALL
Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Francisco Becerra-Fuentes (Becerra) pleaded guilty to illegal reentry after
deportation and was sentenced to 70 months of imprisonment and three years
of supervised release.
Becerra argues in his opening brief that the district court committed
procedural error in imposing a within-guidelines sentence without providing
reasons why it had rejected his nonfrivolous request for a downward variance.
*
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should not be published and is not precedent except under the limited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.
No. 08-40952
In a reply brief filed after this court’s decision in United States v. Mondragon-
Santiago, 564 F.3d 357 (5th Cir. 2009), petition for cert. filed (June 24, 2009) (No.
08-11099), although Becerra continues to argue that the district court did not
provide reasons, he concedes that he cannot show under a plain error standard
of review that the error affected his substantial rights.
Becerra also concedes that this court has held that where, as in his case,
the defendant fails to object in the district court, review should be for plain error.
However, he asserts, for purposes of preserving the issue for further review, that
review should be for abuse of discretion. As Becerra concedes, because he did
not object concerning this issue at sentencing, it is reviewed for plain error. See
Mondragon-Santiago, 564 F.3d at 361.
To show plain error, Becerra must show an error that is clear or obvious
and that affects his substantial rights. See United States v. Baker, 538 F.3d 324,
332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). This court will correct
such an error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.Regardless whether the district court’s explanation was insufficient, and
therefore constituted a clear or obvious error, Becerra concedes that he cannot
show that an explanation would have changed his within-guidelines sentence
and therefore that he cannot show that his substantial rights were affected.
Accordingly, he has not shown any reversible plain error by the district court.
See Mondragon-Santiago, 564 F.3d at 364-65; Baker, 538 F.3d at 332.
AFFIRMED.
2