United States v. Gomez ( 2023 )

Case: 22-30793 Document: 00516935519 Page: 1 Date Filed: 10/18/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-30793 FILED
October 18, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Percel Gomez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:22-CR-53-1
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Percel Gomez pleaded guilty to conspiracy to distribute, and possess
with intent to distribute, 100 grams or more of heroin, in violation of 21
U.S.C. § 841(a)(1). He was sentenced in June 2021 to time-served and 21
months of supervised release.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30793 Document: 00516935519 Page: 2 Date Filed: 10/18/2023
No. 22-30793
In August 2022, Gomez’ probation officer filed a petition asserting
Gomez violated the conditions of his supervised release by: committing a
state crime and possessing a controlled substance; knowingly communicating
or interacting with a convicted felon without permission of his probation
officer; and failing to report within 72 hours that he was questioned by a law-
enforcement officer. The district court revoked Gomez’ supervised release
and imposed an above-Guidelines 24-months’ sentence.
Gomez contests the sentence as plainly unreasonable, asserting the
court erred in balancing the 18 U.S.C. §§ 3553(a) (sentencing) and 3583(e)
(revocation) factors. He highlights his severe medical condition and the
Government’s failure to contest the mitigating evidence or advocate for a
departure.
Our court reviews challenges to revocation sentences under a two-
step “plainly unreasonable” standard. See 18 U.S.C. § 3742(a)(4) (review of
sentence); United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011) (adopting
“plainly unreasonable” standard for revocation sentences). First, we review
for significant procedural error or substantive unreasonableness. E.g., United
States v. Sanchez, 900 F.3d 678, 682 (5th Cir. 2018). If there is error, our
court considers whether “the identified error is obvious under existing law,
such that the sentence is not just unreasonable but plainly unreasonable”. Id.(emphasis in original) (citation omitted).
A sentence outside the Sentencing Guidelines range is substantively
unreasonable “only if it does not account for a factor that should have
received significant weight, gives significant weight to an irrelevant or
improper factor, or represents a clear error of judgment in balancing the
sentencing factors”. Id. at 685.
Although Gomez’ medical issues are severe, he fails to show the court
abused its discretion in weighing the factors. Before imposing sentence, it
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No. 22-30793
considered Gomez’ serious medical condition, including a suitable medical
center for federal prisoners being available; his history and characteristics,
including his continued distribution of narcotics; the need for adequate
deterrence; and the Guidelines commentary. See Guideline § 7B1.4, p.s.,
cmt. n.4.
Further, assuming Gomez preserved the issues, the Government’s
failure to contest the mitigating evidence or request an above-Guidelines
sentence are not statutory sentencing factors under 18 U.S.C. §§ 3553(a) or
3583(e) and does not render the sentence unreasonable. See Sanchez, 900
F.3d at 685 (unaccounted-for factor is reason for vacating sentence). Finally,
the court’s departure is not error as a matter of law because our court has
routinely upheld revocation sentences exceeding the recommended range,
even where the sentence is the statutory maximum. E.g., United States v.
Kippers, 685 F.3d 491, 500–01 (5th Cir. 2012) (affirming revocation sentence
that was statutory maximum and more than five times above top of
Guidelines sentencing range).
AFFIRMED.
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