United States v. Jose Granados-Reyes ( 2010 )

Case: 09-40929 Document: 00511116589 Page: 1 Date Filed: 05/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 19, 2010
No. 09-40929
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE GIOVANNI GRANADOS-REYES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-399-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Jose Giovanni Granados-Reyes appeals the 57-month sentence imposed in
connection with his guilty-plea conviction for being found in the United States
following deportation in violation of 8 U.S.C. § 1326. For the first time on
appeal, Granados-Reyes argues that his sentence is procedurally and
substantively unreasonable because the district court presumed that a sentence
within the applicable sentencing guidelines range was reasonable.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40929 Document: 00511116589 Page: 2 Date Filed: 05/19/2010
No. 09-40929
Generally, this court reviews the sentence imposed for reasonableness in
light of the factors set forth in 18 U.S.C. § 3553(a). United States v. Mares, 402
F.3d 511, 519-20 (5th Cir. 2005). In reviewing a sentence for reasonableness,
this court first determines whether the district court’s sentencing decision is
procedurally sound and then determines whether the sentence is substantively
reasonable. Gall v. United States, 552 U.S. 38, 49-51 (2007). If a defendant fails
to object to an error at sentencing, this court will review the district court’s
actions for plain error only. United States v. Olano, 507 U.S. 725, 731-37 (1993)
As Granados-Reyes did not preserve his presumption-of-reasonableness
argument in the district court, this court will review the district court’s actions
for plain error only. See United States v. King, 541 F.3d 1143, 1144 (5th Cir.
2008), cert. denied, 129 S. Ct. 947 (2009).
The Supreme Court has explained that “the sentencing court does not
enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.” Rita v. United States, 551 U.S. 338, 351 (2007). A sentencing court
cannot require that exceptional circumstances be present to justify imposing a
sentence that is outside of the guidelines range. Gall, 552 U.S. at 47. Contrary
to Granados-Reyes’s argument, nothing in the district court’s remarks shows
that he was required to overcome a presumption that the Guidelines range was
reasonable or required to prove “extraordinary circumstances” before the district
court would impose a non-Guidelines sentence. Granados-Reyes has not
established that the district court erred, much less plainly erred, by applying a
presumption of reasonableness to his advisory sentencing guidelines range. See
King, 541 F.3d at 1145.
The district court’s judgment is AFFIRMED.
2