United States v. Barahona-Paz ( 2021 )

Case: 21-10350 Document: 00516133177 Page: 1 Date Filed: 12/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-10350 December 15, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Antonio Barahona-Paz,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-258-1
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Jose Antonio Barahona-Paz pleaded guilty to illegal reentry after
deportation. He was sentenced to, inter alia, an above-Sentencing Guidelines
term of 36-months’ imprisonment. Barahona contends: the statutory
enhancement provision in 8 U.S.C. § 1326(b) (criminal penalties for reentry
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-10350
of certain removed aliens) is unconstitutional and, therefore, his guilty plea
was unknowing and involuntary; and his sentence was substantively
unreasonable.
Constitutional questions are reviewed de novo. United States v. Brown,
250 F.3d 907, 913 (5th Cir. 2001). Barahona contends: 8 U.S.C. § 1326(b) is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000)
(explaining “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt”); and, as a result,
his guilty plea was not knowing and voluntary because the court did not
advise him that a prior conviction is an element of the offense under
§ 1326(b). As he concedes, however, his assertion § 1326(b) is
unconstitutional is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 226–27, 239–47 (1998) (holding, for purposes of statutory sentencing
enhancement, prior conviction not a fact that must be asserted in indictment
or found by jury beyond reasonable doubt), and raises the issue only to
preserve it for possible further review. See also, United States v. Pineda-
Arrellano, 492 F.3d 624, 625–26 (5th Cir. 2007) (considering the effect of
Apprendi). Accordingly, his plea assertion fails as well.
Regarding his claimed substantively-unreasonable sentence,
Barahona asserts the court erred by: imposing an upward variance; not giving
him credit for time spent in state custody; and not ordering his sentence be
served concurrently with his state sentences under Guideline § 5G1.3
(offenses with relevant conduct). Each claim fails.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to
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an ultimate sentence is reviewed for substantive reasonableness under an
abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez,
564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in
district court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008).
Of these three assertions, however, Barahona did not preserve the
third: that the court should have ordered his federal sentence to be served
concurrently with any sentence he will receive on his state charges, pursuant
to Guideline § 5G1.3(c). Therefore, as Barahona acknowledges, review is
only for plain error for that assertion. E.g., United States v. Broussard, 669
F.3d 537, 546 (5th Cir. 2012). Under that standard, Barahona must show a
forfeited plain error (clear or obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the
discretion to correct the reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.For the upward-variance issue, Barahona has not shown the court: did
“not account for a factor that should have received significant weight”; gave
“significant weight to an irrelevant or improper factor”; or “represent[ed] a
clear error of judgment in balancing the sentencing factors”. See United
States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013) (explaining standard for
substantively-unreasonable sentence). The court: reviewed and adopted the
presentence investigation report; considered Barahona’s mitigating
assertions; and determined an upward variance was appropriate because his
Guidelines range substantially underrepresented his criminal history and
because of the likelihood he would commit other crimes, especially illegal
entry. Along that line, his contention that the court should have weighed the
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No. 21-10350
sentencing factors differently “is not a sufficient ground for reversal”.
United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016). He has also not
shown the extent of the upward variance was not justified. See Gall, 552 U.S.
at 51 (explaining reviewing court “may consider the extent of the deviation,
but must give due deference to the district court’s decision that the [18
U.S.C.] § 3553(a) [sentencing] factors, on a whole, justify the extent of the
variance”).
Moreover, in the light of Barahona’s extensive history of immigration
offenses and prior deportations, the court did not err in rejecting his assertion
that he should have received credit for time spent in state custody. See
U.S.S.G. § 2L1.2, cmt. n.7 (explaining departure based on time served in
state custody considered only where departure not likely to increase risk to
public).
For his assertion reviewed only for plain error, Barahona has not
shown the requisite clear or obvious error concerning whether his state
offenses were relevant conduct under Guideline § 1B1.3 & cmt. n.5(B)
(defining “same course of conduct or common scheme or plan”). See
U.S.S.G. § 5G1.3(c) (instructing court to order concurrent sentences when
anticipated sentence results from “another offense that is relevant conduct to
the instant offense” (emphasis added)); United States v. Ochoa, 977 F.3d 354,
357 (5th Cir. 2020) (explaining defendant must show offenses are “part of
the same course of conduct” or “part of a common scheme or plan” (citation
omitted)), cert. denied, 141 S. Ct. 1281 (2021).
AFFIRMED.
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