United States v. Vasquez-Rodriguez , 291 F. App'x 555 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2008
No. 07-41260
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE LUIS VASQUEZ-RODRIGUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:07-CR-595-ALL
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Vasquez-Rodriguez (Vasquez) pleaded guilty to being an alien
found unlawfully in the United States subsequent to a prior deportation. The
district court sentenced Vasquez to a within-guidelines sentence of 57 months
of imprisonment and three years of supervised release. On appeal, he challenges
only his sentence.
Vasquez argues that his sentence is procedurally unreasonable because
the district court did not assign sufficient reasons to support the sentence it
*
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should not be published and is not precedent except under the limited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. 07-41260
imposed. By not objecting to the district court’s failure to give specific reasons
for its sentence, Vasquez has relegated that claim to plain error review. United
States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008); United States v.
Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir. 2000).
“[W]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation.” Rita v. United
States, 127 S. Ct. 2456, 2468 (2007). The record must merely show that the
district court considered the parties’ arguments and had a reasoned basis for its
sentencing decision. Id.Vasquez’s sole objection to the presentence report (PSR) pertained to the
calculation of his criminal history score, and he acknowledged at sentencing that
his argument was without merit. At sentencing, Vasquez requested a below-
guidelines sentence based on his minor role in his prior drug-trafficking-
conspiracy convictions and the fact that those prior convictions unduly increased
his sentencing range in this case. He also asked the district court to consider the
fact that he illegally entered this country looking for new horizons. After
hearing Vasquez’s request for leniency, the district court adopted the PSR’s
findings and recommendation and imposed the sentence. The district court
indicated in its written statement of reasons that it found no reason to depart
from the guidelines range.
In light of the statement found sufficient by the Court in Rita and the
scant argument Vasquez advanced in support of a below-guidelines sentence,
Vasquez has not shown that the explanation given by the district court was clear
or obvious error which affected the outcome of the proceedings, and he has
therefore not demonstrated plain error. See United States v. Olano, 507 U.S.
725, 734 (1993); Izaguirre-Losoya, 219 F.3d at 441.
Vasquez also challenges the substantive reasonableness of his sentence.
This court reviews a sentencing decision for “reasonableness,” which is the
equivalent of abuse-of-discretion review. United States v. Gall, 128 S. Ct. 586,
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No. 07-41260
594 (2007). When the district court imposes a sentence within a properly
calculated guideline range and gives proper weight to the Guidelines and the
18 U.S.C. § 3553(a) factors, this court “will give great deference to that sentence”
and “will infer that the judge has considered all the factors for a fair sentence set
forth in the Guidelines.” United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.
2005). Moreover, a discretionary sentence imposed within a properly calculated
guideline range, as occurred here, is presumptively reasonable. United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see Rita v. United States, 127 S. Ct.
2456, 2466-68 (2007).
Vasquez argues that the sentence should nevertheless be vacated and the
case summarily remanded on the basis of the Supreme Court’s intervening
decisions in Gall and Kimbrough v. United States, 128 S. Ct. 558 (2007), which,
he urges, “have drastically altered the legal landscape of federal sentencing.”
The argument is not well-taken. Neither case overturned Rita. To the contrary,
Gall reiterated that appellate courts may apply a presumption of reasonableness
to a sentence within the pertinent guideline range. 128 S. Ct. at 597.
Vasquez contends that Kimbrough applies because the district court
erroneously believed that it lacked the discretion to disagree with the policy
behind prior-felony enhancement mandated under the Guidelines, in light of this
court’s precedent in United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir.
2006). Even prior to Kimbrough, this court’s precedent offered district courts the
opportunity to impose a sentence outside the guideline range. See United States
v. Gomez-Herrera,523 F.3d 554, 557 n.1 (5th Cir. 2008). The district court’s
comments at sentencing do not indicate that it would have been inclined not to
apply the 16-level enhancement because of Vasquez’s individual circumstances
but believed it lacked the authority to do so. Consequently, the judgment of the
district court is AFFIRMED.
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