United States v. Andres Reyna, Jr. , 540 F. App'x 329 ( 2013 )

Case: 12-10415 Document: 00512379416 Page: 1 Date Filed: 09/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 19, 2013
No. 12-10415
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDRES MARES REYNA, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CR-260-1
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Andres Mares Reyna, Jr. (Reyna), appeals the 10-month sentence imposed
on revocation of his supervised release. The revocation sentence was ordered to
run consecutively to his 57-month illegal reentry sentence.
On appeal, Reyna contends that the district court erred by imposing a
consecutive revocation sentence based on its erroneous belief that it was
required to do so; failing to adequately explain its reasons for imposing a
consecutive, 10-month revocation sentence; and ordering that the revocation and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10415
illegal reentry sentences run consecutively to each other. Since Reyna did not
object to his sentence on the grounds he raises on appeal, review is for plain
error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009).
To show plain error, Reyna must show that the error was clear or obvious
and affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If he makes such a showing, we have the discretion to correct the
error but only if it “‘seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.’” Id. (alteration in original) (quoting United States v.
Olano, 507 U.S. 725, 736 (1993)).
In this case, as in United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir.
2009), there is no indication that the district court believed that it lacked
discretion to impose a concurrent sentence. When the revocation sentence was
imposed, the district court had already ordered that the illegal reentry sentence
run consecutively to any revocation sentence; therefore, as the Government
argues, the district court’s admonishment to Reyna that his revocation sentence
would run consecutively to the illegal reentry sentence was an accurate
statement of the potential punishment he faced and not an indication that the
district court believed that it lacked discretion to impose a concurrent sentence.
Additionally, since Reyna had urged the district court to impose a concurrent
sentence, we can infer that the district court knew that it had the discretion to
impose a concurrent sentence. See id. Reyna has failed to show any error, plain
or otherwise.
The district court stated that a 10-month revocation sentence was
“appropriate” in light of the 18 U.S.C. § 3553(a) factors. The district court
therefore provided adequate reasons for imposing the 10-month revocation
sentence. See Rita v. United States, 551 U.S. 338, 358-59 (2007). Although the
district court did not specifically explain why it imposed a consecutive revocation
sentence, Reyna makes no argument as to how an adequate explanation would
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No. 12-10415
have changed his sentence. Therefore, he has failed to show that the error, if
any, affected his substantial rights. See Mondragon-Santiago, 564 F.3d at 365.
“A sentence may be illegal if it is ambiguous with respect to the time and
manner in which it is to be served[ or] is internally self-contradictory . . . .”
United States v. Setser, 607 F.3d 128, 132 (5th Cir. 2010) (internal quotation
marks and citations omitted). The Government persuasively argues that the
revocation sentence is not ambiguous or contradictory since the judgment does
not require that the revocation sentence be served first and requires only that
it be served consecutively to the illegal reentry sentence. Moreover, as Reyna
cites no authority that supports his argument that the mutually consecutive
sentences are illegal, he has failed to show any error, plain or otherwise. See
United States v. Sandlin, 589 F.3d 749, 757 (5th Cir. 2009).
The judgment of the district court is AFFIRMED.
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