United States v. Mondragon , 340 F. App'x 963 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2009
No. 08-20302 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
OSCAR MONDRAGON
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. H-05-468
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Oscar Mondragon appeals the 180-month sentence imposed following his
guilty plea conviction of conspiracy to hold persons in a condition of peonage and
to knowingly recruit, harbor, transport, provide, and obtain persons for labor
and services, and conspiracy to recruit aliens to enter the United States illegally
and to transport and harbor those aliens for purposes of financial gain.
Mondragon contends that the district court erred by not giving him a sentence
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20302
proportionate to the 109-month sentence received by a co-defendant who was
given a substantial assistance departure pursuant to U.S.S.G. § 5K1.1. He also
argues that this Court should not apply a presumption of reasonableness to his
within-guidelines sentence because of this disparity.
We review sentences for reasonableness, first determining whether the
sentence is procedurally sound, then considering whether the sentence is
substantively reasonable under an abuse of discretion standard.1 Mondragon,
however, failed to raise the current objections to his sentence at sentencing;
therefore, our review is limited to plain error.2
In United States v. Duhon,3 this Court held that the district court erred by
considering the sentencing disparity between Duhon and his co-defendant when
that disparity existed because the co-defendant received a downward departure
for providing substantial assistance to the government. Here, Mondragon’s
attorney recognized at sentencing that Mondragon “wasn’t in a position to
provide [the government] information that would warrant a downward
departure.” His co-defendant, however, was in that position and did assist the
government. “Disparity in sentences between a defendant who provided
substantial assistance and one who provided no assistance . . . is not
unwarranted.” 4 There was no plain error in calculating Mondragon’s guideline
sentence.
The district court’s comments show that it gave careful consideration to
the presentence report, the nature and circumstances of the offense, and the
arguments of counsel. It found no reason to depart from the guidelines.
1
U.S. v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008).
2
U.S. v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
3
541 F.3d 391, 397 (5th Cir. 2008).
4
Id. (quoting U.S. v. Gallegos, 480 F.3d 856, 859 (8th Cir.2007)).
2
No. 08-20302
Mondragon has not shown any reason that the sentence is unreasonable, only
arguing that his sentence is disparate from his co-defendant’s, an argument
foreclosed by Duhon.
AFFIRMED.
3