Cazarez v. United States Parole Commission , 463 F. App'x 287 ( 2012 )

Case: 11-60460 Document: 00511768820 Page: 1 Date Filed: 02/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 27, 2012
No. 11-60460 Lyle W. Cayce
Summary Calendar Clerk
RODOLFO LICON CAZAREZ,
Petitioner
v.
UNITED STATES PAROLE COMMISSION,
Respondent
Appeal from a Decision of the
United States Parole Commission
(No. 84154-198)
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Rodolfo Cazarez was convicted of murdering his uncle in Mexico. He was
transferred to the United States to serve his sentence pursuant to a treaty.
After such transfers, the United States Parole Commission is to determine the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60460
prisoner’s release date. Cazarez appeals from the determination that his release
will occur after he serves 262 months in prison, followed by a 36 month term of
supervised release. We AFFIRM.
In September 2006, Cazarez and his uncle were in Mexico, both were
intoxicated, and they began to fight about money. Cazarez used his uncle’s own
gun to shoot him twice, killing him. Cazarez was convicted in a Mexican court
of murder, and that conviction was affirmed on appeal. He was transferred at
some point to the United States.
After a transfer, the Parole Commission “shall, without unnecessary delay,
determine a release date and a period and conditions of supervised release for
an offender transferred to the United States to serve a sentence of
imprisonment, as though the offender were convicted in a United States district
court of a similar offense.” 18 U.S.C. § 4106A(b)(1)(A). Our review is “as though
the determination appealed had been a sentence imposed by a United States
district court.” Id. § 4106A(b)(2)(B). Typically, that means our review involves
considering “the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007). The
Commission argues that because Cazarez did not request a Guidelines
departure, we should review only for plain error. See United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007). Because Cazarez does not prevail even
under the more stringent abuse of discretion review, we do not need to conclude
whether abuse of discretion or plain error review applies.
The hearing examiner found second degree murder to be the most
analogous offense under the Sentencing Guidelines. The examiner calculated
an offense level of 35 and a criminal history category of V, resulting in a
Guidelines range of 262 - 327 months. The Parole Commission determined that
he was originally sentenced to 28 years, but his sentence was reduced on appeal
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Case: 11-60460 Document: 00511768820 Page: 3 Date Filed: 02/27/2012
No. 11-60460
to 23 years. “We accept the Parole Commission’s factual findings unless clearly
erroneous.” Welsh v. U.S. Parole Comm’n, 513 F.3d 169, 172 (5th Cir. 2008).
Cazarez does not challenge the calculation under the Guidelines. His only
argument on appeal is that the Commission failed to consider his allegations of
abuse in Mexican prison, his post-sentencing rehabilitation as shown by his
church attendance, his wood working, his desire to help youth, and the lower
chance of recidivism because he is 45 years old.
The hearing examiner made these conclusions:
I recommend that the Commission set a release date after service of
262 months, which is the bottom of the guideline range. This
recommendation takes into account the factors in 18 U.S.C. 3553,
including the need to provide an adequate period of supervision for
drug aftercare and for monitoring Cazarez’s adjustment after
release. In addition to the nature of the offense and Cazarez’s
criminal record, I have taken into account the mistreatment
Cazarez received in the Mexican prison.
Cazarez has not established the Commission abused its discretion in
adopting the hearing examiner’s recommendation of a sentence at the bottom of
the Guidelines range.
AFFIRMED.
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