United States v. Arriaga

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2009
No. 08-41066
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
WALBERTO ARRIAGA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:08-CR-443-1
Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Walberto Arriaga appeals the 18-month sentence imposed following his
guilty-plea conviction for making a false statement in connection with the
acquisition of a firearm. Arriaga contends that his sentence is procedurally and
substantively unreasonable. He argues that the district court committed
reversible procedural error because it failed to provide reasons for both Arriaga’s
within-guidelines sentence and its denial of his nonfrivolous arguments for a
below-guidelines sentence. Arriaga also argues that the sentence is excessive
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-41066
and greater than necessary to accomplish the sentencing objectives of 18 U.S.C.
§ 3553(a). According to Arriaga, the guidelines range overpunished him for
extraneous offenses. He also notes his “actual role in this non-violent offense”
and his good behavior while on bond.
Because Arriaga failed to raise his procedural objection in the district
court, review is for plain error. See United States v. Lopez-Velasquez, 526 F.3d
804, 806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008). To show plain error,
Arriaga must show an error that is clear or obvious and that affects his
substantial rights. See United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009); see also Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). If he makes such a showing, we have the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Baker, 538 F.3d at 332.
The record reflects that the district court denied Arriaga’s request for a
below-guidelines sentence without reasons. The explanation for Arriaga’s
sentence was as follows: “The court adopts the factual findings and guideline
applications in the presentence investigation report. It’s the judgment of the
court that the defendant, Walberto Arriaga, is hereby committed to the custody
of the Bureau of Prisons to be imprisoned for a term of 18 months.” Also, in its
statement of reasons, the district court indicated that “[t]he sentence is within
an advisory guideline range that is not greater than 24 months, and the court
finds no reason to depart.” Arriaga is correct that the district court did not
adequately explain its reasons for the sentence imposed. See United States v.
Mondragon-Santiago, __ F.3d __, 2009 WL 782894, at *5 (5th Cir. Mar. 26,
2009). However, Arriaga’s 18-month sentence is within the advisory guidelines
range. Furthermore, he fails to show that an explanation for his sentence would
have changed his 18-month sentence. Thus, Arriaga has failed to show that the
district court’s error affected his substantial rights. See id. at *7.
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No. 08-41066
With regard to his substantive reasonableness challenge, Arriaga contends
that review should be for an abuse of discretion, not plain error, because he
requested a shorter sentence based upon the same issues that he raises now. We
need not determine, however, whether plain-error review is appropriate in this
case because Arriaga is not entitled to relief even assuming that he preserved
the substantive reasonableness issue for review. See United States v. Rodriguez,
523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
Arriaga fails to establish that his sentence is substantively unreasonable.
His within-guidelines sentence is entitled to a presumption of reasonableness.
See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The district court
heard the Government’s recommendation regarding a “fair” term of
imprisonment. The district court also heard Arriaga’s arguments concerning his
age, his role in the offense, his behavior while on bond, and his lack of a criminal
history but elected to impose a sentence at the low end of the advisory guidelines
range. Arriaga has not demonstrated that his within-guidelines sentence was
an abuse of discretion by the district court. See Alonzo, 435 F.3d at 554.
Accordingly, the judgment of the district court is AFFIRMED.
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