United States v. Librado Liendo-Saucedo , 570 F. App'x 433 ( 2014 )

Case: 13-50258 Document: 00512655379 Page: 1 Date Filed: 06/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50258 FILED
c/w No. 13-50259 June 6, 2014
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LIBRADO LIENDO-SAUCEDO,
Defendant-Appellant
________________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
LIBRADO LIENDO-SAUCEDO, also known as Edward Ortiz,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1624-1
Case: 13-50258 Document: 00512655379 Page: 2 Date Filed: 06/06/2014
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Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Librado Liendo-Saucedo (Liendo) appeals the 27-month within-
guidelines sentence imposed by the district court following his guilty plea
conviction for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). He
also appeals the consecutive 24-month sentence imposed following the
revocation of a prior term of supervised release.
Initially, Liendo contends that his 51-month combined sentence is
substantively unreasonable because it is greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a). The sentence imposed for Liendo’s new
illegal reentry offense and the sentence imposed upon the revocation of
supervised release are separate sentences imposed in separate criminal
proceedings. See Johnson v. United States, 529 U.S. 694, 700-01 (2000).
Moreover, we have rejected arguments that a consecutive within-guidelines
revocation sentence, like Liendo’s, renders the combined sentence
unreasonable. See United States v. Lopez-Velasquez, 526 F.3d 804, 808-09 (5th
Cir. 2008). Liendo’s challenge to the substantive reasonableness of the
combined sentence is without merit.
We review Liendo’s challenge to his 27-month sentence under an abuse
of discretion standard, taking into account the totality of the circumstances.
See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Mondragon-
Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Because the sentence was within
the advisory guidelines imprisonment range, we afford the sentence a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
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presumption of substantive reasonableness. 1 United States v. Tuma, 738 F.3d
681, 695 (5th Cir. 2013). Liendo argues that the sentence imposed was greater
than necessary because of (1) the flawed nature of U.S.S.G. § 2L1.2, the
Guideline used to calculate his sentence, (2) the staleness of a prior felony drug
conviction that was used to enhance his sentence, (3) the non-violent nature of
his offense, and (4) the motive for his reentry, i.e., duress caused by threats
from Mexican drug cartels. Liendo has not made the showing necessary to
overcome the presumption of reasonableness afforded his sentence. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The record reflects that the
district court considered Liendo’s mitigation arguments and ultimately
concluded that a sentence at the top of the applicable guidelines range was
appropriate based on the circumstances of the case and the § 3553(a) factors.
The fact that we might reasonably conclude “that a different sentence was
appropriate is insufficient to justify reversal.” Gall, 552 U.S. at 51.
Liendo has also failed to show that the consecutive 24-month within-
guidelines revocation sentence is substantively or plainly unreasonable. See
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). We review preserved
challenges to revocation sentences under a deferential plainly unreasonable
standard. 2 Id. Under that standard, we “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id. (internal quotation marks and citation omitted). If the sentence
1 Liendo challenges the applicability of the presumption of reasonableness in cases
involving U.S.S.G. § 2L1.2. He acknowledges, however, that his challenge is foreclosed, see
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), and he raises the
issue here only to preserve it for further review.
2Liendo preserves for further possible review his argument that revocation sentences
should be reviewed under the reasonableness standard stated in United States v. Booker, 543
U.S. 220, 260-62 (2005).
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is unreasonable, we determine “whether the error was obvious under existing
law.” Id.The 24-month revocation sentence was within the range recommended
by the policy statements set forth in the Sentencing Guidelines, and it was
within the statutory maximum term of imprisonment that the district court
could have imposed. See 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4(a). As
previously discussed, Liendo’s contention that the facts of his case justified a
lower sentence are insufficient to rebut the presumption of reasonableness
afforded his revocation sentence. See Lopez-Velasquez, 526 F.3d at 808-09(applying presumption of reasonableness to a revocation sentence imposed
within the recommended range).
Accordingly, the district court’s judgments are AFFIRMED.
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