United States v. Herly Urbina-Abrego

Case: 12-51122 Document: 00512296094 Page: 1 Date Filed: 07/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 3, 2013
No. 12-51122
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
HERLY LEONEL URBINA-ABREGO,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-359-1
Before BARKSDALE, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Herly Leonel Urbina-Abrego pleaded guilty to being illegally present in the
United States following deportation and received, pursuant to that plea, an
above-Guidelines sentence of 30 months’ imprisonment. (His advisory
sentencing range was 15 to 21 months.) Contesting the reasonableness of that
sentence, Urbina contends the district court erred: procedurally, by improperly
considering evidence of his previous arrests (domestic violence or assault and
battery on a family member) and by double-counting his convictions; and,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51122
substantively, by ruling his prior arrests and convictions were aggravated for
sentencing purposes.
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect,
for issues preserved in district court, its application of the Guidelines is reviewed
de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005).
Although Urbina expressly challenges the substantive reasonableness of
his sentence, he arguably implicitly claims procedural error by asserting the
district court improperly considered information concerning his arrests, as set
forth in the Presentence Investigation Report (PSR), to determine his sentence.
Because Urbina failed to raise this issue in district court, however, its review is
only for plain error. E.g., United States v. Jones, 484 F.3d 783, 792 (5th Cir.
2007). For reversible plain error, Urbina must show, inter alia, 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).
In addition to listing the alleged offenses for which Urbina was arrested,
the PSR also included factual information underlying those arrests. Urbina
neither objected to the PSR nor offered rebuttal evidence. E.g., United States v.
Harris, 702 F.3d 226, 231 (5th Cir. 2012), cert. denied, 133 S. Ct. 1845 (2013) (no
plain error where district court considered unrebutted factual information in
PSR to determine sentence). Accordingly, Urbina fails to show clear or obvious
error.
Urbina also arguably claims procedural error by asserting the district
court improperly double-counted his prior convictions by using them to increase
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No. 12-51122
his criminal history score and to justify an upward variance. “[D]ouble-counting
is prohibited only if it is specifically forbidden by the particular guideline at
issue”. United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Again, Urbina
fails to show clear or obvious error. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009).
Regarding his challenge to the substantive reasonableness of his sentence,
which he arguably preserved in district court, Urbina contends his arrests and
convictions were not of an aggravated nature for sentencing purposes. He
asserts that lengthening his term of imprisonment will not protect the public
because he no longer has contact with his wife, and will be deported upon his
release from prison. “A non-Guideline sentence unreasonably fails to reflect the
statutory sentencing factors where it (1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
Urbina’s disagreeing with the propriety of the sentence is insufficient to
show error. “[T]he sentencing judge is in a superior position to find facts and
judge their import under [18 U.S.C.] § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008).
AFFIRMED.
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