United States v. Netro-Perales ( 2023 )

Case: 23-40074 Document: 00516916519 Page: 1 Date Filed: 10/02/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
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October 2, 2023
No. 23-40074 Lyle W. Cayce
Summary Calendar Clerk
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United States of America,
Plaintiff—Appellee,
versus
Mario Alberto Netro-Perales,
Defendant—Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:22-CR-867-1
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Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Mario Alberto Netro-Perales appeals his sentence for his guilty plea
conviction for being an alien who was unlawfully present in the United States
after deportation. After denying Netro-Perales’s motion for a downward
departure, the district court imposed a within-guidelines term of 21 months
of imprisonment and three years of supervised release.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40074 Document: 00516916519 Page: 2 Date Filed: 10/02/2023
No. 23-40074
In his first argument, Netro-Perales contends that the district court
erred by deferring to the Guidelines commentary when denying his motion
for a downward departure. We may review a downward-departure denial
only if “the district court held a mistaken belief that the Guidelines do not
give it the authority to depart.” United States v. Sam, 467 F.3d 857, 861 (5th
Cir. 2006). To the extent that Netro-Perales relies on Kisor v. Wilkie, 139 S.
Ct. 2400 (2019), in support of his assertion that the Guidelines commentary
is not due any deference, that assertion is repudiated by our recent decision
in United States v. Vargas, 74 F.4th 673, 680-83 (5th Cir. 2023) (en banc).
Although the record does not indicate that the district court relied on the
Guidelines commentary to deny the downward departure motion, Netro-
Perales has not shown any error in that regard even if the district court did
rely on that commentary.
Netro-Perales also contends that the district court erred by counting
his prior illegal reentry convictions for purposes of a sentencing enhancement
and to determine his criminal history category. Our review is for plain error.
See Puckett v. United States, 556 U.S. 129, 135 (2009). As noted by the
Government, Netro-Perales’s argument is identical to the one rejected by
this court in United States v. Cordova-Lopez, 34 F.4th 442, 444-46 (5th Cir.
2022). Netro-Perales has failed to show any plain error.
The district court’s judgment is AFFIRMED.
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