United States v. Jorge Blanco-Castillo

Case: 11-41068 Document: 00511844671 Page: 1 Date Filed: 05/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 4, 2012
No. 11-41068
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JORGE BLANCO-CASTILLO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:11-CR-178-1
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jorge Blanco-Castillo challenges his 46-month sentence, imposed following
his guilty-plea conviction on one count of attempted exportation of defense
articles from the United States. Blanco contends his within-Guidelines sentence
is: procedurally unreasonable because the district court misapprehended its
authority to impose a downward departure pursuant to application note one of
Guideline § 2M5.2; and substantively unreasonable because it is greater than
necessary to achieve the sentencing objectives of 18 U.S.C. § 3553(a).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41068
Although Blanco moved in district court for a downward departure
pursuant to Guideline § 5K2.0, he did not raise the procedural-and-substantive-
reasonableness contentions he raises here. Accordingly, review is only for plain
error. E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). For plain error, a forfeited error that is clear or obvious and that affects
his substantial rights must be shown. E.g., Puckett v. United States, 556 U.S.
129, 135 (2009). If such a showing is made, our court has the discretion to
correct the error but will generally do so only if it seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Id.Our court lacks jurisdiction to review a district court’s refusal to depart
downward from the Guidelines-sentencing range, see United States v.
Hernandez, 457 F.3d 416, 424 (5th Cir. 2006), unless the district court “held a
mistaken belief that the Guidelines do not give it the authority to depart”.
United States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008) (internal quotation
marks omitted). And, “something in the record must indicate that the district
court held such an erroneous belief”. United States v. Valencia-Gonzales, 172
F.3d 344, 346 (5th Cir. 1999).
Nothing in the record indicates the district court wished to grant a
downward departure pursuant to Guideline §§ 2M5.2 or 5K2.0, but mistakenly
believed it could not do so. Rather, the record demonstrates that the court did
not believe a departure was warranted. Therefore, Blanco has failed to show
error, plain or otherwise, with respect to the procedural reasonableness of his
sentence. See Puckett, 556 U.S. at 135. Further, as noted, to the extent he
challenges the denial of the downward departure, our court lacks jurisdiction to
review the contention. See Hernandez, 457 F.3d at 424.
The district court considered Blanco’s request for a lower sentence, but
elected to impose a within-Guidelines sentence. A within-Guidelines sentence
is presumptively reasonable. See, e.g., United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). Blanco has not shown that his sentence is substantively
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No. 11-41068
unreasonable nor has he rebutted the presumption of reasonableness that
attaches to his within-Guidelines sentence. See, e.g., United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Accordingly, he has failed to show
the district court plainly erred by imposing the within-Guidelines sentence. See
Puckett, 556 U.S. at 135.
DISMISSED IN PART; AFFIRMED IN PART.
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