United States v. Juan Quezada Rebulloza , 621 F. App'x 299 ( 2015 )

Case: 15-50253 Document: 00513258433 Page: 1 Date Filed: 11/04/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-50253 November 4, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JUAN PABLO QUEZADA REBULLOZA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-2176-1
Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Juan Pablo Quezada Rebulloza challenges the substantive
reasonableness of his 27-month within-Guidelines sentence for improper use
of another’s passport, in violation of 18 U.S.C. § 1544. In asserting his sentence
is greater than necessary to accomplish the goals of 18 U.S.C. § 3553(a), he
contends he used the passport to illegally enter the United States solely for the
purpose of reuniting with his family, and not to either commit a crime of
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 15-50253
terrorism or endanger others. Quezada also contends the sentence: was based
on the Guidelines’ “relatively high starting point [of a 27-to-33-month
sentencing range] for the relatively minor offense”; overstated the seriousness
of his criminal history; and does not reflect his personal history and
characteristics.
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). 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); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
As Quezada concedes, he did not object to the reasonableness of his
sentence; therefore, review is only for plain error. E.g., United States v. Peltier,
505 F.3d 389, 391 (5th Cir. 2007). (Regarding his conceded failure to object,
Quezada maintains he should not be required to do so concerning the
reasonableness of his sentence when it is imposed; recognizes this issue is
foreclosed by our circuit precedent; and presents the issue to preserve it for
possible future review. Moreover, even if the more lenient abuse-of-discretion
standard were applied to his challenge to the reasonableness of his sentence,
it would fail.)
Under the applicable plain-error review, if Quezada demonstrates a clear
or obvious error that affects his substantial rights, the reversible plain error
may be remedied, but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135
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No. 15-50253
(2009). For the following reasons, the requisite clear or obvious error is
lacking.
Quezada’s sentence was within the Guidelines advisory sentencing
range and is, therefore, presumptively reasonable. E.g., United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To rebut that presumption, Quezada
must show: “the sentence does not account for a factor that should receive
significant weight, . . . gives significant weight to an irrelevant or improper
factor, or . . . represents a clear error of judgment in balancing sentencing
factors”. Id.
The district court considered Quezada’s assertions in mitigation of his
sentence and, balancing them with the § 3553(a) objectives, concluded a
sentence at the bottom of the sentencing range was appropriate. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). The court determined
Quezada’s criminal history, cultural assimilation, and benign motive for
illegally returning to the United States did not warrant a below-Guidelines
sentence, but granted his request for a sentence at the low end of the
sentencing range. See Gomez-Herrera, 523 F.3d at 565-66.
AFFIRMED.
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