United States v. Rivera-Cerda , 200 F. App'x 372 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 21, 2006
Charles R. Fulbruge III
Clerk
No. 06-40333
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO RIVERA-CERDA, also known as Gabriel Garza
Mejia-Cerda, also known as Sergio Hernandez-Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:01-CR-249-ALL
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Sergio Rivera-Cerda appeals from the sentence imposed
following revocation of his term of supervised release. Rivera-
Cerda argues that his sentence was clearly unreasonable, both in
terms of its length and the fact that it was to run consecutively
to his other sentence, because: (1) it was unfair in light of
the relevant facts; (2) the district court failed to give due
consideration to the factors in 18 U.S.C. § 3553(a), as required
by United States v. Booker, 543 U.S. 220 (2005); (3) the district
*
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this opinion should not be published and is not precedent except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. 06-40333
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court rigidly adhered to the relevant policy statements in the
Sentencing Guidelines; (4) it was grossly disproportionate to the
crime, thereby violating the Eighth Amendment; and (5) the
Sentencing Commission and the Sentencing Guidelines violate the
separation of powers doctrine and the due process clause of the
Fifth Amendment.
The Government has moved for dismissal of the appeal or for
summary affirmance on the ground that this court lacks
jurisdiction to consider Rivera-Cerda’s appeal under 18 U.S.C.
§ 3742(a)(4). Because Rivera-Cerda cannot prevail on the merits
of his appeal, we pretermit consideration of the jurisdictional
issue. See United States v. Weathersby, 958 F.2d 65, 66 (5th
Cir. 1992). The Government’s motion for dismissal of the appeal
or for summary affirmance is therefore denied. The Government’s
alternative request for an extension of time to file an appeal
brief is also denied as unnecessary.
The district court properly considered the 18 U.S.C.
§ 3553(a) factors when imposing Rivera-Cerda’s sentence. See
United States v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001).
Rivera-Cerda’s sentence was neither unreasonable nor plainly
unreasonable. See United States v. Hinson, 429 F.3d 114, 120
(5th Cir. 2005). Moreover, his sentence was not
unconstitutionally disproportionate. See United States v.
Sullivan, 895 F.2d 1030, 1031-32 (5th Cir. 1990).
No. 06-40333
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Rivera-Cerda’s separation of powers challenge to the
Sentencing Commission and the Sentencing Guidelines is foreclosed
under Booker. 543 U.S. at 242-43. Moreover, this court will not
consider Rivera-Cerda’s due process argument because it was
inadequately briefed. See United States v. Torres-Aguilar, 352
F.3d 934, 936 n.2 (5th Cir. 2003); FED. R. APP. P. 28(a)(9).
AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED;
ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY.