United States v. Carlos Castaneda-Estupinan

Case: 12-20025 Document: 00512089660 Page: 1 Date Filed: 12/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2012
No. 12-20025
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS CASTANEDA-ESTUPINAN, also known as Carlos
Estupinan-Castaneda,
Defendant-Appellant
Cons. w/ No. 12-20031
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS CASTANEDA-ESTUPINAN, also known as Carlos
Estupinan-Castaneda, also known as Carlos Castaneda-Estupian, also known
as Carlos Castaneda-Estupinan, also known as Carlos Castaneda Estupian,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-191-1
USDC No. 4:11-CR-603-1
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No. 12-20025
c/w No. 12-20031
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Carlos Castaneda-Estupinan appeals the 30-month sentence imposed
following his conviction for illegal reentry following deportation in violation of
8 U.S.C. § 1326(a) and (b). He also appeals the consecutive 24-month sentence
imposed following the revocation of his supervised release related to his prior
conviction for felony possession of a firearm.
Castaneda-Estupinan challenges the imposition of a term of supervised
release in his illegal reentry case as procedurally and substantively
unreasonable. In his reply brief, he concedes that his challenges to the
procedural unreasonableness of his supervised release are foreclosed by United
States v. Dominguez-Alvarado, 695 F.3d 324 (5th Cir. 2012), and he states that
he wishes to raise the issues to preserve them for further review. As for the
substantive reasonableness challenge, the district court articulated an
acceptable reason for imposing a term of supervised release on Castaneda-
Estupinan, see id., and the record does not suggest that the imposition of a term
of supervised release was otherwise unreasonable.
Castaneda-Estupinan also argues that the district court erred when it
relied on the prohibited sentencing factor of “punishment” when it imposed his
revocation sentence. He concedes that we should review this issue for plain
error. To show plain error, he must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.*
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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Even assuming arguendo that the district court relied on an impermissible
sentencing factor when imposing the revocation sentence, Castaneda-Estupinan
has not shown that such error affected his substantial rights because the district
court also relied on permissible 18 U.S.C. § 3553(a)(2) sentencing factors when
imposing the revocation sentence, and the record does not unambiguously
indicate that, absent any such error, his revocation sentence would have been
less. See United States v. Miller, 634 F.3d 841, 844 (5th Cir.), cert. denied, 132
S. Ct. 496 (2011); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005);
see also United States v. Tovar, 480 F. App’x 345, 348-49 (5th Cir. 2012).
Finally, Castaneda-Estupinan argues that his individual and aggregate
sentences are procedurally and substantively unreasonable because the district
court failed to adequately address his “nonfrivolous” arguments for lower
sentences and for the sentences to run concurrently and because the district
court did not accurately weigh and consider the § 3553(a) factors. The record
establishes that the court considered the arguments that were presented to it
and provided reasoned bases for the sentences imposed. See Rita v. United
States, 551 U.S. 338, 356 (2007). Castaneda-Estupinan’s within-guidelines
illegal reentry sentence is presumptively substantively reasonable, see United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008), and his
disagreement with the propriety of the sentence imposed does not rebut the
presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008). Moreover, we have routinely upheld revocation
sentences exceeding the recommended range, even where the sentence is the
statutory maximum. See, e.g., United States v. Jones, 182 F. App’x 343, 343-44
(5th Cir. 2006). Finally, the district court did not abuse its discretion in
imposing a consecutive revocation sentence, see United States v. Whitelaw, 580
F.3d 256, 260 (5th Cir. 2009), and Castaneda-Estupinan has not shown that the
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aggregate sentence was procedurally or substantively unreasonable. The
judgments of the district court are AFFIRMED.
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