United States v. Mario Cortez-Velez

Case: 12-51252 Document: 00512466774 Page: 1 Date Filed: 12/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-51252 FILED
Summary Calendar December 10, 2013
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO CORTEZ-VELEZ,
Defendant-Appellant
Cons. w/ No. 12-51260
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO CORTES-VELEZ, also known as Mario Cortez-Belez,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-446-1
USDC No. 2:09-CR-153-1
Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM: *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-51252
c/w No. 12-51260
Mario Cortez-Velez pleaded guilty to being found in the United States
following a previous deportation and was sentenced to a within-guidelines
sentence of 25 months of imprisonment. The district court also revoked Cortez-
Velez’s term of supervised release on a prior conviction and imposed a within-
guidelines sentence of 22 months, to run consecutively to the illegal reentry
sentence. His appeals from those judgments were consolidated.
Cortez-Velez contends that the district court procedurally erred in
considering his request for a variance based on family circumstances solely
under the Guidelines, specifically U.S.S.G. § 5H1.6. By doing so, Cortez-Velez
asserts, the district court “treated the guideline as mandatory or failed to
consider relevant factors under 18 U.S.C. § 3553(a).” Because Cortez-Velez did
not raise this argument before the district court, as he acknowledges, review
is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). Cortez-Velez thus must show an error that is clear or obvious
and that 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 affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
A fair reading of the sentencing transcript indicates that the district
court not only considered the Guidelines, but also Cortez-Velez’s criminal
history and the need to deter future criminal conduct by Cortez-Velez when
determining that a within-guidelines sentence was appropriate. See § 3553(a).
Thus, Cortez-Velez fails to show that the district court procedurally erred. See
Gall v. United States, 552 U.S. 38, 51 (2007); Puckett, 556 U.S. at 135. Even
assuming, arguendo, that the district court did err, Cortez-Velez cannot show
that the error “affected the outcome in the district court.” See Mondragon-
Santiago, 564 F.3d at 364. He does not argue that if the case was remanded
for resentencing, the district court could not impose the same consecutive
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Case: 12-51252 Document: 00512466774 Page: 3 Date Filed: 12/10/2013
No. 12-51252
c/w No. 12-51260
sentences. See United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997).
Additionally, he points to nothing in the record to support his conclusional
assertion that there is a reasonable probability that, but for the district court’s
error, he would have received lower sentences. See United States v. Davis, 602
F.3d 643, 647 (2010). Accordingly, he is not entitled to relief under plain error
review. See Puckett, 556 U.S. at 135.
Cortez-Velez also contends that the sentences imposed on his illegal
reentry offense and revocation are substantively unreasonable because they
are greater than necessary to satisfy the sentencing goals of § 3553(a). We
review Cortez-Velez’s arguments challenging the substantive reasonableness
of his sentence under a deferential abuse of discretion standard. See Gall, 552
U.S. at 51.
We have consistently rejected Cortez-Velez’s “double counting
argument” and his argument that U.S.S.G. § 2L1.2 results in an excessive
sentence because it is not empirically based. See United States v. Duarte, 569
F.3d 528, 530 (5th Cir. 2009). Further, Cortez-Velez acknowledges that his
challenge to the presumption of reasonableness is foreclosed. See Mondragon-
Santiago, 564 F.3d at 366-67. The record reflects that the district court
considered Cortez-Velez’s arguments for a below guidelines sentence, but
determined that a 25-month sentence was “necessary in order to deter future
criminal conduct.” Cortez-Velez has failed to rebut the presumption of
reasonableness that is accorded his within-guidelines sentence. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Similarly, he has failed to show
that the 22-month consecutive sentence imposed following the revocation of his
supervised release was plainly unreasonable. See United States v. Miller, 634
F.3d 841, 843 (5th Cir. 2011). Accordingly, the judgment of the district court
is AFFIRMED.
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