United States v. German Sanchez-Valle

Case: 13-40133 Document: 00512526457 Page: 1 Date Filed: 02/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40133
c/w No. 13-40145
United States Court of Appeals
Fifth Circuit
Summary Calendar FILED
February 7, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GERMAN SANCHEZ-VALLE,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-719-1
USDC No. 2:09-CR-318-1
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
German Sanchez-Valle appeals his 30-month within-guidelines sentence
that was imposed following his guilty plea to a charge of illegal reentry after
deportation, as well as his 21-month sentence that was imposed upon the
revocation of his supervised release. With regard to his 30-month sentence,
Sanchez-Valle argues that the district court committed procedural error by
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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failing to consider the 18 U.S.C. § 3553(a) factors in imposing his sentence and
by failing to adequately explain its reasons for the sentence. He also argues
that his sentence is substantively unreasonable.
Ordinarily, we review sentences for reasonableness in light of the factors
set forth in 18 U.S.C. § 3553(a), employing a bifurcated process. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). We first determine whether the district court
committed any significant procedural error. Cisneros-Gutierrez, 517 F.3d at
764 (citation omitted). If the sentence is procedurally sound, we then consider
the substantive reasonableness. See id. Sanchez-Valle concedes that because
he did not object to the procedural or substantive reasonableness of the 30-
month sentence, review is for plain error only. To establish plain error,
Sanchez-Valle must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we may exercise our discretion to correct
the error if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.A sentencing court commits significant procedural error where it fails to
consider the § 3553(a) factors or fails to adequately explain the chosen sentence
Gall, 552 U.S. at 51. When a judge decides simply to apply the Guidelines to
a particular case, doing so will not necessarily require lengthy explanation.
Rita v. United States, 551 U.S. 338, 356 (2007). Here, the district court
considered Sanchez-Valle’s arguments for a lesser sentence, which included
arguments concerning his personal history and characteristics, but the district
court decided that a sentence at the top of the advisory guidelines range was
appropriate. Although the district court did not explicitly refer to the § 3553(a)
factors, a court imposing a guidelines sentence is presumed to have considered
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the § 3553(a) factors, which are embodied in the Guidelines. See id. at 347-51.
To the extent that Sanchez-Valle argues that the district court committed
procedural error by treating the Guidelines as mandatory, there is no
indication of such treatment in the record, and Sanchez-Valle points to none.
Although Sanchez-Valle challenges the substantive reasonableness of
his sentence, his within-guidelines sentence is presumed to be reasonable. See
United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
Sanchez-Valle fails to rebut the presumption of reasonableness that attaches
to his within guidelines sentence. He fails to offer any authority that the
district court actually failed to account for a factor that should have received
significant weight; that the court gave significant weight to an irrelevant or
improper factor; or that the sentence represented a clear error of judgment in
balancing sentencing factors. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009). Sanchez-Valle is essentially asking this court to reweigh the
§ 3553(a) factors, which we may not do. See Gall, 552 U.S. at 51.
Sanchez-Valle’s argument that his criminal history was overstated or did
not justify the 30-month sentence similarly fails. We have repeatedly rejected
arguments that convictions for illegal reentry are somehow less heinous or
unworthy of criminal history points. See United States v. Reyes-Arguelles, 471
F. App’x 315, 316 (5th Cir. 2012) (unpublished). We have also rejected the
argument that the crime of illegal reentry is merely a trespass offense that is
treated too harshly under U.S.S.G. § 2L1.2. See United States v. Aguirre-Villa,
460 F.3d 681, 683 (5th Cir. 2006). Accordingly, Sanchez-Valle has not shown
error, much less plain error regarding the procedural and substantive
reasonableness of his 30-month sentence. See Puckett, 556 U.S. at 135.
Next, Sanchez-Valle argues that the district court did not address him
personally, and he was not given the opportunity to allocute. He also argues
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that he was afforded the opportunity to allocute, but that the district court “cut
off” his attempt to allocute. Sanchez-Valle did not object to the district court’s
alleged denial of this right, and our review is for plain error only. United States
v. Avila-Cortez, 582 F.3d 602, 604 (5th Cir. 2009). Our review of the record
shows that Sanchez-Valle was given the opportunity to address the court but
declined to do so.
Last, we consider Sanchez-Valle’s challenge to the 21-month sentence
imposed upon revocation of his supervised release. Revocation sentences
generally are reviewed under 18 U.S.C. § 3742(a)(4)’s “plainly unreasonable”
standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). When
specific claims of error raised on appeal were not raised before the district
court, such as the case here, our review is for plain error only. See United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
Sanchez-Valle has not shown error, plain or otherwise, with regard to
his revocation sentence. His 21-month sentence, which was at the bottom of
the sentencing range recommended by the policy statements, is entitled to a
presumption of reasonableness. See United States v. Lopez-Velasquez, 526
F.3d 804, 809 (5th Cir. 2008). To the extent that Sanchez-Valle argues that
the district court failed to adequately explain its reasons for imposing the 21-
month sentence, we do not require district courts to state explicitly the reasons
for selecting a revocation sentence; thus, any error (to which no objection was
made) cannot rise to the level of plain error. See United States v. Cantrell, 236
F. App’x 66, 69 (5th Cir. 2007). Also, and contrary to Sanchez-Valle’s
argument, there is nothing in the record to suggest that the district court relied
upon improper sentencing factors. See Miller, 634 F.3d at 844. Accordingly,
the judgment is AFFIRMED.
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