United States v. Pablo-Gonzalez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 7, 2009
No. 08-41308
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TOMAS PABLO-GONZALEZ, also known as Tomas Pablo Gonzalez,
Defendant-Appellant
Consoldiated with
No. 08-41318
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TOMAS PABLO-GONZALEZ, also known as Juan Garcia-Gonzalez,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:08-CR-603-ALL
USDC No. 1:08-CR-1174-ALL
No. 08-41308 c/w
No. 08-41318
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
In these consolidated appeals, Tomas Pablo-Gonzalez challenges (1) the
sentence imposed following his conviction for being an alien unlawfully found in
the United States after deportation, 8 U.S.C. § 1326; and (2) the sentence
imposed following the revocation of a previously imposed term of supervised
release, 18 U.S.C. § 3583(e)(3). Pablo-Gonzalez argues that the district court
committed significant procedural error with respect to both sentences by
imposing within-guidelines sentences without adequate explanation or
consideration of the 18 U.S.C. § 3553(a) factors. Pablo-Gonzalez concedes that
he did not raise these arguments in the district court with respect to either
sentence, but he seeks to preserve for review his contention that review should
not be limited to plain error.
Because Pablo-Gonzalez did not raise these arguments in the district court
with respect to either sentence, we review for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), petition for cert. filed
(June 24, 2009) (No. 08-11099). To show plain error, Pablo-Gonzalez 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). This court will correct such an error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.Pablo-Gonzalez does not explain how either sentence might have differed
had the district court provided a more thorough explanation for its sentencing
choices. Even if Pablo-Gonzalez has identified clear or obvious errors with
respect to the adequacy of the district court’s explanation of reasons for the
*
Pursuant to 5 TH C IR. 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 5 TH C IR. R. 47.5.4.
2
No. 08-41308 c/w
No. 08-41318
sentences imposed, Pablo-Gonzalez cannot show that the errors affected his
substantial rights because nothing in the record suggests that his sentences
would have been different had the court provided more extensive reasons for the
sentences imposed. See Mondragon-Santiago, 564 F.3d at 364-65. He argues
that his substantial rights were affected because the district court’s failure to
explain why it rejected his nonfrivolous arguments for lesser sentences
“rendered it impossible for the court of appeals to conduct any meaningful
substantive reasonableness review.” This argument is foreclosed with respect
to within-guidelines sentences. See Mondragon-Santiago, 564 F.3d at 365.
Because Pablo-Gonzalez has not shown that the errors, if any, affected his
substantial rights, he has not shown plain error. See id. at 364-65; Baker, 538
F.3d at 332. The judgments of the district court are AFFIRMED.
3