United States v. Andres Morales-Gomez

Case: 13-20038 Document: 00512611791 Page: 1 Date Filed: 04/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20038 April 29, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDRES MORALES-GOMEZ, also known as Andres Morales Gomez, also
known as Julio C. Conpean, also known as Andres Gomez-Diaz,
Defendant-Appellant
Cons. w/ No. 13-40086
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDRES MORALES-GOMEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-154-1
USDC No. 7:07-CR-651-1
Case: 13-20038 Document: 00512611791 Page: 2 Date Filed: 04/29/2014
No. 13-20038
c/w No. 13-40086
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Andres Morales-Gomez pleaded guilty to illegal reentry after deportation
in violation of 8 U.S.C. § 1326 and was sentenced within the guideline range
to 96 months of imprisonment with no term of supervised release. The district
court revoked his supervised release imposed on his previous illegal reentry
conviction and sentenced Morales-Gomez to 14 months of imprisonment, with
no term of supervised release, to run consecutively to the 96 months.
In connection with the new illegal reentry offense, Morales-Gomez
argues that the district court committed plain error at sentencing by failing to
consider the positions of the Government and the defense, including the
mitigating argument that he re-entered the United States because his life was
in danger in Mexico. In relation to the revocation sentence, he argues that the
district court plainly erred by failing to make any findings or to explain the
sentence after his statement that he would try to find a place to live in Mexico.
Although Morales-Gomez frames his argument in terms of Federal Rules of
Criminal Procedure 32 and 32.1 and the right of allocution, he does not argue
that he and his counsel were not given the opportunity to allocute in mitigation
of punishment. His argument is that the district court did not consider his
mitigating arguments or give reasons for rejecting them.
Because Morales-Gomez failed to object to his sentence, procedurally or
substantively, at the sentencing hearing, we review the district court’s actions
for plain error only. Puckett v. United States, 556 U.S. 129, 134-35 (2009);
United States v. Peltier, 505 F.3d 389, 391-92, 394 (5th Cir. 2007).
* 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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When a court rejects nonfrivolous arguments for a sentence outside the
guidelines range, it should give reasons for doing so. Rita v. United States, 551
U.S. 338, 358-59 (2007). The record demonstrates that the district court
listened to and considered the arguments of counsel and Morales-Gomez for a
nonguidelines sentence. The district court concluded that a within-guidelines
sentence of 96 months was appropriate, noting Morales-Gomez’s extensive
criminal history and his disregard of the law, and considering the factors of
recidivism, respect for the law, and safety of the public. The court’s reasons
were significantly more extensive than those given in Rita. See Rita, 551 U.S.
at 358-59. Further, they reflect consideration of appropriate factors, such as
protection of the public, the need for deterrence, and Morales-Gomez’s history
and characteristics. See 18 U.S.C. § 3553(a)(1), (2)(A)-(C). With regard to the
revocation sentence, the district court explained that the revocation sentence
was “imposed pursuant to the Chapter 7 policy statements and addresses the
sentencing objectives of punishment, incapacitation and deterrence in
accordance with 18, United States Code, Section 3553(c).” The district court’s
explanations as to both sentences were sufficient to explain why it rejected
Morales-Gomez’s mitigating arguments as weighed against the other factors.
Morales-Gomez had not demonstrated plain error as to the procedural
reasonableness of his sentences. See Peltier, 505 F.3d at 391-92, 394.
Morales-Gomez also argues that the district court imposed substantively
unreasonable sentences. He contends that in support of a lower sentence, he
offered his cooperation by debriefing and a mitigating defense of duress and
necessity because his life was in danger in Mexico. He notes that he also
indicated that he would try to find a place where he could live in Mexico. He
asserts that the district court ignored his duress argument and sentenced him
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without comment or consideration of the mitigating facts, resulting in a
substantively unreasonable sentence.
The district court heard the mitigating arguments of Morales-Gomez and
his counsel before imposing a sentence within the advisory guidelines range.
The district court considered Morales-Gomez’s personal history and
characteristics and the other statutory sentencing factors in § 3553(a), in
particular Morales-Gomez’s extensive criminal history, including three prior
immigration offenses. That an appellate court “might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007).
Moreover, the within-guidelines sentence imposed by the district court is
entitled to a rebuttable presumption of reasonableness. Rita, 551 U.S. at 347.
Morales-Gomez’s arguments do not show a clear error of judgment on the
district court’s part in balancing the § 3553(a) factors; instead, they constitute
a mere disagreement with the weighing of those factors. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). He has not shown plain error. See
Peltier, 505 F.3d at 391-92.
In relation to his revocation sentence, Morales-Gomez notes that he
asked for a variance in the form of a concurrent sentence. A district court has
the discretion to order a sentence imposed upon revocation of supervised
release to be served consecutively to any other sentence. 18 U.S.C. § 3584;
United States v. Gonzalez, 250 F.3d 923, 929 n.8 (5th Cir. 2001). Moreover,
consecutive sentences are preferred under the policy statements of the
Guidelines. U.S.S.G. § 7B1.3(f) & comment. (n.4). The district court noted this
policy statement in its reasons for imposing a consecutive sentence. We have
repeatedly upheld revocation sentences imposed to run consecutively to the
sentences imposed for the underlying offenses leading to the revocation. See
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United States v. Ramirez, 264 F. App’x 454, 458-59 (5th Cir. 2008). Morales-
Gomez’s 14-month consecutive sentence upon revocation of his supervised
release is not plainly erroneous. See United States v. Whitelaw, 580 F.3d 256,
259-60 (5th Cir. 2009).
Accordingly, Morales-Gomez’s sentences are AFFIRMED.
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