United States v. Marco Morales-Perez ( 2012 )


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  •      Case: 12-50063       Document: 00512083650         Page: 1     Date Filed: 12/13/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT   United States Court of Appeals
    Fifth Circuit
    FILED
    December 13, 2012
    No. 12-50063
    c/w No. 12-50083                       Lyle W. Cayce
    Summary Calendar                             Clerk
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,
    v.
    MARCO ANTONIO MORALES-PEREZ,
    Defendant–Appellant.
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 2:10-CR-1589-3
    USDC No. 2:11-CR-1185-1
    Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Marco Antonio Morales-Perez was convicted of illegal reentry into the
    United States and was sentenced to serve 46 months in prison and a three-year
    term of supervised release. Additionally, the term of supervised release he was
    serving when he committed the illegal reentry offense was revoked, and he was
    sentenced to serve 10 months in prison on the revocation. He appeals both
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50063     Document: 00512083650      Page: 2   Date Filed: 12/13/2012
    No. 12-50063
    and No. 12-50083
    judgments, and we consolidate the appeals. See United States v. Rodriguez, 
    564 F.3d 735
    , 737 (5th Cir. 2009); FED. R. APP. P. 3(b)(2).
    The arguments that Morales-Perez currently raises were not presented to
    the district court, so they are considered under the plain error standard. See
    Puckett v. United States, 
    556 U.S. 129
    , 134-35 (2009); United States v. Peltier,
    
    505 F.3d 389
    , 391-92 (5th Cir. 2007). To prevail under that standard, he must
    show an error that is clear or obvious and that affects his substantial rights, but
    even so, we will exercise our discretion to correct any such error only if it
    “seriously affect[s] the fairness, integrity or public reputation of judicial
    proceedings.” See Puckett, 
    556 U.S. at 135
     (internal quotation marks omitted).
    First, Morales-Perez argues that his illegal reentry sentence is
    substantively unreasonable because his prior conspiracy conviction was unfairly
    counted in multiple places in the presentence report. As he concedes, this
    double-counting was permissible under the applicable Guideline. See United
    States v. Duarte, 
    569 F.3d 528
    , 529-30 (5th Cir. 2009); United States v. Calbat,
    
    266 F.3d 358
    , 364 (5th Cir. 2001). Insofar as he contends that this acceptable
    double-counting resulted in a substantively unreasonable sentence, his
    arguments on this issue amount to no more than a disagreement with the
    propriety of the sentence, which does not show error. See Gall v. United States,
    
    552 U.S. 38
    , 51 (2007); United States v. Campos-Maldonado, 
    531 F.3d 337
    , 339
    (5th Cir. 2008) (per curiam). Morales-Perez has shown no error in connection
    with his illegal reentry conviction and sentence.
    Next, Morales-Perez contends that the revocation is invalid because the
    term of supervised release imposed for his prior conviction is invalid.          A
    defendant may not use a supervised release proceeding to challenge the validity
    of his original conviction or sentence. United States v. Willis, 
    563 F.3d 168
    , 170
    (5th Cir. 2009); United States v. Hinson, 
    429 F.3d 114
    , 116 (5th Cir. 2005);
    United States v. Moody, 
    277 F.3d 719
    , 721 (5th Cir. 2001). Consequently, the
    2
    Case: 12-50063   Document: 00512083650     Page: 3   Date Filed: 12/13/2012
    No. 12-50063
    and No. 12-50083
    arguments that Morales-Perez presents pertaining to his revocation proceedings
    are to no avail.
    The appeals are CONSOLIDATED, and the judgments are AFFIRMED.
    3