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United States v. Castro-Lopez ( 2022 )


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  • Case: 21-20420     Document: 00516316512         Page: 1     Date Filed: 05/12/2022
United States Court of Appeals
for the Fifth Circuit                        United States Court of Appeals
Fifth Circuit
FILED
May 12, 2022
No. 21-20420
Lyle W. Cayce
Summary Calendar                       Clerk
United States of America,
Plaintiff—Appellee,
versus
Hector Castro-Lopez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-862-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Hector Castro-Lopez appeals the within-Guidelines sentence
imposed following his guilty plea to illegal reentry. Castro-Lopez argues that
his sentence is substantively unreasonable because the district court gave
undue weight to improper factors in denying his request for a downward
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-20420      Document: 00516316512           Page: 2     Date Filed: 05/12/2022
No. 21-20420
variance based on time served in state custody. See United States v. Smith,
    440 F.3d 704
    , 708 (5th Cir. 2006). We ordinarily review the substantive
reasonableness of a sentence in light of the
    18 U.S.C. § 3553
    (a) sentencing
factors for an abuse of discretion. Gall v. United States,
    552 U.S. 38
    , 51
(2007).
“There is no statutory authority for district courts to award credit
against federal sentences for time spent in state custody.” United States v.
Barrera-Saucedo,
    385 F.3d 533
    , 536 (5th Cir. 2004); see also United States v.
Aparicio,
    963 F.3d 470
    , 477 (5th Cir.), cert. denied,
    141 S. Ct. 435
     (2020).
Nevertheless “it is permissible for a sentencing court to grant a downward
departure [under the § 3553(a) factors] to an illegal alien for all or part of the
time served in state custody from the time immigration authorities locate the
defendant until he is taken into federal custody.” Barrera-Saucedo,
    385 F.3d at 536
    ; see also U.S.S.G. § 2L1.2, comment. (n.7). This type of departure is
to be considered only in cases where it is not likely to increase the risk to the
public from other offenses from the defendant. § 2L1.2, comment. (n.7).
The record establishes that Castro-Lopez was not a first-time
offender, and his substantial criminal history, as set forth in the presentence
worksheet, was deemed to be a factor of danger to the community.
Additionally, the district court’s consideration of Castro-Lopez’s personal
history in choosing to start a family in a country in which he could not live
legally was not tantamount to consideration of an improper factor in denying
the requested variance. See § 3553(a)(1). The record further supports that
the district court’s off-hand remarks to both Castro-Lopez and another
defendant sentenced at the same hearing regarding working, alcohol use, and
taking care of their families in the United States had no bearing on Castro-
Lopez’s sentence.
2
Case: 21-20420     Document: 00516316512           Page: 3   Date Filed: 05/12/2022
No. 21-20420
On this record, no showing has been made that the sentence was the
result of the giving of significant weight to improper factors. See Smith,
    440 F.3d at 708
    . Castro-Lopez has presented nothing that would overcome the
presumption of reasonableness that attaches to a within-Guidelines sentence.
See United States v. Ruiz,
    621 F.3d 390
    , 398 (5th Cir. 2010).
AFFIRMED.
3