United States v. Laurian-Matuz ( 2021 )


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  • Case: 21-50319      Document: 00516062760         Page: 1    Date Filed: 10/20/2021
    United States Court of Appeals
    for the Fifth Circuit                            United States Court of Appeals
    Fifth Circuit
    FILED
    No. 21-50319                      October 20, 2021
    Summary Calendar                      Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Pedro Luis Laurian-Matuz,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 7:18-CR-65-1
    Before Wiener, Dennis, and Haynes, Circuit Judges.
    Per Curiam:*
    Defendant-Appellant Pedro Luis Laurian-Matuz pleaded guilty to one
    count of illegal reentry after deportation in violation of 
    8 U.S.C. § 1326
    (a).
    The guidelines recommended a 46 to 57 month term of imprisonment. The
    *
    Pursuant to 5th Circuit Rule 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    opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4. Judge Haynes concurs in the
    judgment only.
    Case: 21-50319      Document: 00516062760          Page: 2   Date Filed: 10/20/2021
    No. 21-50319
    district court sentenced him to 96 months followed by three years of
    supervised release. Laurian-Matuz appeals his sentence on grounds of
    procedural and substantive reasonableness.
    He first contends that the district court erred by (1) not providing
    notice that it was considering an upward departure and (2) not providing an
    adequate explanation for the 96-month sentence.
    Federal Rule of Criminal Procedure 32(h) states that “[b]efore the
    court may depart from the applicable sentencing range on a ground not
    identified for departure either in the presentence report or in a party’s
    prehearing submission, the court must give the parties reasonable notice that
    it is contemplating such a departure.” It is undisputed that the district court
    did not provide notice that it was contemplating a departure.
    As Laurian-Matuz did not object in the district court, our review is for
    plain error. Puckett v. United States, 
    556 U.S. 129
    , 135 (2009); United States
    v. Williams, 
    620 F.3d 483
    , 493 (5th Cir. 2010). “To succeed on plain-error
    review, [Laurian-Matuz] must show: (1) an error, (2) that is clear and
    obvious, and (3) affected his substantial rights.” United States v. Zelaya-
    Rosales, 
    707 F.3d 542
    , 544 (5th Cir. 2013). For the third prong, he “must
    show a ‘reasonable probability that the result of the proceedings would have
    been different but for the error.’” 
    Id. at 545
     (quoting United States v. Olano,
    
    507 U.S. 725
    , 734 (1993). See also United States v. Jones, 
    444 F.3d 430
    , 443
    (5th Cir. 2006) (concluding that there was no clear error when “we cannot
    say that it was reasonably probable that the district court would have chosen
    a lesser sentence”).
    Laurian-Matuz offers no evidence that, with adequate notice, he could
    have persuaded the district court to impose a lower sentence. The district
    court departed upward from the top of the guidelines range because it
    concluded that Laurian-Matuz’s criminal history of illegal reentry offenses
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    Case: 21-50319      Document: 00516062760           Page: 3   Date Filed: 10/20/2021
    No. 21-50319
    (followed by brief terms of imprisonment), and his conviction for possession
    with intent to distribute marijuana, were underrepresented by the guidelines.
    Laurian-Matuz “does not dispute the accuracy of his [criminal history and]
    he has not shown a reasonable probability that the district court would have
    imposed a lesser sentence if it had given him notice of its intent to depart
    from the Guidelines.” Zelaya-Rosales, 707 F.3d at 545.
    Laurian-Matuz next contends that the district court failed to provide
    an adequate explanation for the above-guidelines sentence that it imposed.
    No further explanation is required when the record reflects that the
    sentencing judge heard the parties’ arguments before determining that a non-
    guidelines sentence was warranted under the 
    18 U.S.C. § 3553
    (a) factors. See
    United States v. Fraga, 
    704 F.3d 432
    , 438-39 (5th Cir. 2013). The district
    court considered Laurian-Matuz’s mitigating arguments and the § 3553(a)
    factors. It stated that it was imposing an above-guidelines sentence because
    it felt that Laurian-Matuz’s criminal history was underrepresented by the
    advisory guidelines. The district court therefore did not commit plain error.
    See Puckett, 
    556 U.S. at 135
    ; Williams, 
    620 F.3d at 493
    .
    Finally, Laurian-Matuz asserts that his sentence was substantively
    unreasonable because the district court did not adequately consider the
    § 3553(a) factors. Laurian-Matuz has preserved his challenge to the
    substantive reasonableness of the sentence because he advocated before the
    district court for a sentence shorter than the one ultimately imposed. This
    court therefore reviews for abuse of discretion. See Holguin-Hernandez v.
    United States, 
    140 S. Ct. 762
    , 766-67 (2020); United States v. Diehl, 
    775 F.3d 714
    , 724 (5th Cir. 2015).
    The record shows that the district court considered all relevant
    information and arguments as well as the sentencing factors in § 3553(a).
    There is no evidence that the district court failed to account for a factor that
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    No. 21-50319
    should have received significant weight, gave significant weight to an
    irrelevant or improper factor, or committed a clear error of judgment in
    balancing the § 3553(a) factors. United States v. Smith, 
    440 F.3d 704
    , 708 (5th
    Cir. 2006). Laurian-Matuz’s arguments amount to no more than a request
    for this court to reweigh the statutory sentencing factors, which we will not
    do. See United States v. Hernandez, 
    876 F.3d 161
    , 166-67 (5th Cir. 2017).
    The sentence imposed by the district court is AFFIRMED.
    4