United States v. Ricardo Castillo

Case: 10-20839 Document: 00511638339 Page: 1 Date Filed: 10/19/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2011
No. 10-20839
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICARDO CASTILLO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-318-1
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ricardo Castillo appeals his 151-month sentence following his conviction
for conspiracy to possess with intent to distribute five kilograms or more of
cocaine. He argues only that the district court committed procedural error by
relying on a clearly erroneous fact when imposing his sentence. See Gall v.
United States, 552 U.S. 38, 51 (2007). Because he raises this issue for the first
time on appeal, we review the issue for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-20839 Document: 00511638339 Page: 2 Date Filed: 10/19/2011
No. 10-20839
Castillo is correct that when the district court initially gave its reasons for
his sentence, the court stated that he was in this country illegally. However,
after the probation officer and the parties informed the court that Castillo was
here legally, the district court did not alter its sentence, and in its written
statement of reasons, the district court omitted any reference to Castillo’s
immigration status. Because the district court corrected its own error in the
written statement of reasons, Castillo has not shown that the district court
committed plain error by relying on a clearly erroneous fact. See Gall, 552 U.S.
at 51. Additionally, “[q]uestions of fact capable of resolution by the district court
upon proper objection at sentencing can never constitute plain error.” United
States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Castillo’s challenge to the
district court’s statement regarding his illegal status could easily have been
resolved by the district court if he had objected to that finding. Because Castillo
did not object, for this additional reason, he cannot show plain error in
connection with the district court’s statement that he was in this country
illegally. See id.
Moreover, Castillo has failed to establish with a reasonable probability
that, but for any error, he would have received a lower sentence, see United
States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010), in light of the fact that the
district court did not alter its sentence after it was informed that Castillo was
in this country legally and that it omitted his immigration status from its
written statement of reasons. For these reasons, Castillo has failed to overcome
plain-error review. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
AFFIRMED.
2