United States v. Portillo-Orellana ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2009
No. 07-41118
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE LEANDRO PORTILLO-ORELLANA, also known as Jose Orellana-Portilla
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1618-1
Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Leandro Portillo-Orellana (Portillo) appeals the sentence imposed
following his guilty plea conviction of illegal reentry, in violation of 8 U.S.C.
§ 1326. Portillo was sentenced within his advisory sentencing guidelines range
to a 52-month term of imprisonment. We review a district court’s sentencing
decision for reasonableness under an abuse-of-discretion standard. Gall v.
United States, 128 S. Ct. 586, 596-97 (2007).
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-41118
On appeal, Portillo argues that the district court failed to provide adequate
reasons both for its imposition of a within-guidelines sentence and its denial of
his nonfrivolous arguments for a below-guidelines sentence. Because Portillo
failed to raise these challenges in the district court, review is for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), petition
for cert. filed (June 24, 2009) (No. 08-11099). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Id. If the appellant makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
Portillo is correct that the district court erred when it did not adequately
explain its reasons for the sentence imposed. See id. at 361-65. However,
Portillo has not shown that, without the error, his sentence would have been
different. Thus, he has failed to show that the district court’s error affected his
substantial rights. See id. at 364-65.
Portillo also argues that his within-guidelines sentence should not be
accorded a presumption of reasonableness because U.S.S.G. § 2L1.2, the
Guideline used to calculate his advisory sentencing guidelines range, was not
promulgated according to usual Sentencing Commission procedures and did not
take into account empirical data and national experience. This argument was
rejected in Mondragon-Santiago. See id. at 366-67.
Portillo further argues that the Supreme Court’s decisions in Gall and
Kimbrough v. United States, 128 S. Ct. 558 (2007), which were issued after his
sentencing, broadened the district court’s discretion to impose a non-guidelines
sentence. As in Mondragon-Santiago, nothing in the record suggests that the
district court was constrained by this court’s precedent from considering all of
Portillo’s arguments for a non-guidelines sentence or that the district court
believed that it could not deviate from the advisory guidelines range in the
absence of extraordinary circumstances. See id. at 365-66. Portillo has not
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shown that the district court misconstrued its authority to depart down from or
to vary from the advisory sentencing guidelines range based on this court’s
pre-Gall precedent. Accordingly, as to this issue, no error has been shown, plain
or otherwise.
The judgment of the district court is AFFIRMED.
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