United States v. Gonzalez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 7, 2007
No. 06-10772
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
NICOLAS GONZALEZ
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:06-CR-142-ALL
Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Nicolas Gonzalez appeals the 30-month term of imprisonment imposed by
the district court following the revocation of his supervised release. He correctly
asserts that his advisory sentencing range under U.S.S.G. § 7B1.4(a), p.s., was
12-18 months of imprisonment, not the 24-30 months of imprisonment cited by
the district court. He argues that the sentence was both plainly erroneous and
procedurally unreasonable.
*
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should not be published and is not precedent except under the limited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. 06-10772
Because Gonzalez raises his challenge to his sentence for the first time in
this appeal, our review is for plain error. See United States v. Jones, 484 F.3d
783, 792 (5th Cir. 2007). The sentence will be upheld unless there is error, that
is plain and that affects both Gonzalez’s substantial rights and the integrity of
the proceedings. Id.Gonzalez argues that because the district court selected from an incorrect
advisory sentencing range and his sentence lies outside the correct range, “the
substantial rights prong of the plain error test is met.” Gonzalez cites no
authority supporting his assertion that prejudice may be presumed in his case,
and this court’s prior plain-error revocation cases hold otherwise. See United
States v. Boykin, No. 05-50704, 2006 WL 616031 at *1 & n.3 (5th Cir. Mar. 13,
2006) (unpublished), cert. denied, 127 S. Ct. 153 (2006); United States v.
Mitchell, 212 F. App’x 319 (5th Cir. 2007) and United States v. Harris, 230 F.
App’x 401 (5th Cir. 2007).
Gonzalez’s argument that the district court’s sentence selection
demonstrates an affect on his substantial rights also fails. Although the district
court did not offer any explanation as to why it selected a 30-month sentence,
the court believed that such was the highest term available under the advisory
scheme. Further, as noted by the Government, 18 months of the 30-month
sentence are to be served concurrently to the 210-month term already imposed
and the resulting 12-month term that Gonzalez must serve consecutively is the
minimum sentence under correct advisory Guidelines. Because Gonzalez has
not made the showing required to demonstrate an affect on his substantial
rights, we need not examine whether the court’s error seriously affected the
fairness, integrity, or public reputation of the judicial proceedings. See United
States v. Olano, 507 U.S. 725, 734 (1993).
AFFIRMED.
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