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United States v. Jose Diaz-Gonzalez ( 2010 )


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  •            IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2010
No. 09-50583
c/w No. 09-50584                       Lyle W. Cayce
Summary Calendar                             Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ISABEL DIAZ-GONZALEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-705-2
USDC No. 2:08-CR-710-1
Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
Jose Isabel Diaz-Gonzalez pleaded guilty in 2007 to conspiracy to illegally
transport aliens in violation of
    8 U.S.C. § 1324
     and was sentenced to 10 months
in prison and a three-year term of supervised release. He did not appeal. His
term of supervised release began on June 5, 2008. Three weeks later, he
illegally reentered the United States in violation of
    8 U.S.C. § 1326
    . He pleaded
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 09-50583
c/w No. 09-50584
guilty to the illegal reentry offense and was sentenced to 52 months of
imprisonment and a three-year term of supervised release. Diaz-Gonzalez’s
supervised release in the alien-smuggling case was revoked, and he was
sentenced to 10 months of imprisonment. No further term of supervised release
was imposed.
Diaz-Gonzalez appeals his 52-month sentence following his illegal reentry
conviction. He argues that the district court erred in denying him a three-level
adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), that
the district court failed to address his argument that the prison disciplinary
proceedings upon which the denial of the adjustment was based violated his due
process rights, and that the resulting 52-month sentence was substantively
unreasonable. He also appeals the original three-year term of supervised release
that was imposed in the alien-smuggling case.
Following United States v. Booker,
    453 U.S. 220
     (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in
    18 U.S.C. § 3553
    (a). United States v. Mondragon-Santiago,
    564 F.3d 357
    , 360 (5th Cir.),
cert. denied,
    130 S. Ct. 192
     (2009). We review the district court’s application of
the Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez,
    517 F.3d 751
    , 764 (5th Cir. 2008); United States v. Villegas,
    404 F.3d 355
    , 359 (5th Cir. 2005).
In determining whether a reduction under § 3E1.1(a) applies, the district
court may consider the defendant’s “voluntary termination or withdrawal from
criminal conduct or associations.” § 3E1.1, comment. (n.1(b)); cf. United States
v. Watkins,
    911 F.2d 983
    , 985 (5th Cir. 1990). The district court’s refusal to
grant a reduction for acceptance of responsibility is reviewed “with even greater
deference” than clear error review. United States v. Buchanan,
    485 F.3d 274
    ,
287 (5th Cir. 2007).
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No. 09-50583
c/w No. 09-50584
We conclude that the district court’s factual finding was plausible in light
of the record as a whole. See United States v. Betancourt,
    422 F.3d 240
    , 246 (5th
Cir. 2005). The district court’s denial of the adjustment was not “without
foundation” as the victim of the assault identified Diaz-Gonzalez as one of his
assailants.     The district court, thus, did not clearly err in denying the
adjustment for acceptance of responsibility under § 3E1.1. See United States v.
Juarez-Duarte,
    513 F.3d 204
    , 211 (5th Cir. 2008).
Further, the district court imposed a below guidelines sentence after using
the guidelines sentencing range as a benchmark and then considering all of the
sentencing factors set forth in § 3553(a). Diaz-Gonzalez has failed to show that
the resulting 52-month sentence is substantively unreasonable or greater than
necessary to satisfy the sentencing factors set forth in § 3553(a).
Diaz-Gonzalez has also failed to show that the district court erred in
failing to address whether the prison disciplinary proceeding violated his due
process rights since any such challenge must be brought in a collateral
proceeding.
He also challenges the original three-year term of supervised release.
Even assuming that he has not waived his challenge to his original term of
supervised release by failing to timely appeal that sentence, he has failed to
demonstrate that the district court plainly erred in imposing the three-year term
of supervised release. See Puckett v. United States,
    129 S. Ct. 1423
    , 1429 (2009);
see § 1324(a)(1)(A)(v)(I), (B)(I);
    18 U.S.C. §§ 3583
    (a),(b)(2), 3559(a)(3); U.S.S.G.
§ 5D1.2(a)(2).
Finally, we note that Diaz-Gonzalez does not challenge the grounds for the
revocation of supervised release or allege any error with respect to the sentence
imposed upon revocation or the term of supervised release imposed in the illegal
reentry case.
Accordingly, the judgments of the district court is AFFIRMED.
3