United States v. Marcos Choc-Uselo ( 2020 )

Case: 20-50036 Document: 00515570683 Page: 1 Date Filed: 09/18/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 18, 2020
No. 20-50036
Lyle W. Cayce
consolidated with
Clerk
No. 20-50037
United States of America,
Plaintiff—Appellee,
versus
Marcos Tulio Choc-Uselo,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-2132-1
USDC No. 2:18-CR-2613-1
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Marcos Tulio Choc-Uselo pleaded guilty to illegal reentry, and the
district court sentenced him to an above-Guidelines prison term of 30 months
*
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should not be published and is not precedent except under the limited circumstances set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.
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No. 20-50036
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and also imposed a three-year term of supervised release. Choc-Uselo was on
supervised release at the time of his illegal reentry offense, and the district
court revoked his supervised release and sentenced him to a consecutive term
of six months of imprisonment.
Choc-Uselo makes two arguments on appeal:
First, he contends that the district court imposed a substantively
unreasonable prison sentence because it failed to balance the circumstances
underlying his criminal history with the nature of the instant offense. He
contends that his criminal history is attributable to his arrival in the United
States as a juvenile without adult supervision.
At sentencing, Choc-Uselo explained the nature of his juvenile
criminal history, emphasizing the lack of adult supervision when he entered
the United States. However, the district court emphasized the seriousness of
the instant illegal reentry offense and, citing 18 U.S.C. § 3553(a) sentencing
factors, such as the need to promote respect for the law and Choc-Uselo’s
personal characteristics, found the Guidelines range (10–16 months) to be
inadequate. The district court noted that Choc-Uselo committed the illegal
reentry while on supervised release after serving a 24-month sentence for a
previous illegal reentry offense. The court determined that for purposes of
respect for the law and deterrence, a sentence between 10–16 months was
inappropriate.
Choc-Uselo has not shown that the district court, when imposing
sentence, failed to consider a significant factor, considered an improper
factor, or made a clear error of judgment in balancing the relevant factors. See
United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015). His mere
disagreement with the sentence imposed does not warrant reversal. See
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Therefore, Choc-
Uselo has not shown that the district court abused its discretion by imposing
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No. 20-50036
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a substantively unreasonable variance. See Gall v. United States, 552 U.S. 38,
51 (2007); Diehl, 775 F.3d at 724.
Second, Choc-Uselo argues that the district court abused its
discretion when it ordered his revocation sentence to run consecutively to his
illegal reentry sentence. He contends that the district court failed to consider
the § 3553(a) sentencing factors in its decision, specifically whether
consecutive sentences resulted in a sentence greater than necessary to
achieve the goals of § 3553(a).
The district court noted its consideration of the Chapter Seven policy
statements when it imposed its sentence. Although it did not explicitly
mention its consideration of the § 3553(a) factors, it implicitly considered
them by referring to the Sentencing Reform Act of 1984. See United States v.
Mares, 402 F.3d 511, 517 (5th Cir. 2005). Moreover, only moments before the
revocation sentencing, the same judge had engaged in a more extensive
sentencing proceeding with the same parties, and therefore, having just
presided over a full sentencing proceeding for his new offense, the district
court was well aware of how the § 3553(a) factors related to Choc-Uselo. See
18 U.S.C. § 3583(e)(3); U.S.S.G. Ch. 7, Pt. B, intro. comment; United States
v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001). Accordingly, Choc-Uselo has
not demonstrated that the district court erred by failing to consider the
§ 3553(a) sentencing factors when imposing consecutive sentences. See
Gonzales, 250 F.3d at 927–28.
AFFIRMED.
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