United States v. Rodriguez-Gutierrez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-30451
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALONSO RODRIGUEZ-GUTIERREZ, also known as Saul
Martinez-Guevara, also known as Luis Rodriguez, also
known as Saul Alberto Martinez-Guevara, also known as
Alonzo Martinez-Lopez, also known as Luis Alonso
Gutierrez-Rodriguez, also known as Luis Martinez,
also known as Alonso Martines,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CR-373-F
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Luis Alonso Rodriguez-Gutierrez ("Rodriguez") appeals from
his sentence following a guilty plea to illegal re-entry
following deportation subsequent to an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b). The district court
ordered that the sentence run consecutive to an anticipated but
not yet imposed sentence for revocation of supervised release.
*
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this opinion should not be published and is not precedent except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. 04-30451
-2-
Rodriguez argues that the district court lacked authority to
order a consecutive sentence under 18 U.S.C. § 3584(a).
Although the Government argues that the case is moot because
the revocation sentence was ordered to run consecutive to the
sentence challenged here, we are not convinced that we cannot
even theoretically grant relief. See Vieux Carre Property Owners
v. Brown, 948 F.2d 1436, 1446 (5th Cir. 1991). We ordinarily
review a district court's decision to impose consecutive rather
than concurrent sentences for abuse of discretion. See United
States v. Lynch, 378 F.3d 445, 447 (5th Cir. 2004). Because
Rodriguez did not object to the consecutive sentence in the
district court, however, we review for plain error. See FED. R.
CRIM. P. 52(b); United States v. Calverley, 37 F.3d 160, 162 (5th
Cir. 1994)(en banc). Under our precedent, which Rodriguez
acknowledges, the district court's consecutive sentence did not
constitute plain error. See United States v. Brown, 920 F.2d
1212, 1216-17 (5th Cir. 1991).
AFFIRMED.