United States v. Conrado Minora-Escarcega ( 2012 )

Case: 11-50950 Document: 00511866110 Page: 1 Date Filed: 05/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 24, 2012
No. 11-50950
c/w No. 11-50960 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CONRADO MINORA-ESCARCEGA,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-144-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
In these consolidated appeals, Conrado Minora-Escarcega (Minora)
challenges (1) the sentence imposed following his conviction for being found
unlawfully in the United States following deportation in violation of 8 U.S.C.
§ 1326 and (2) the sentence imposed following the revocation of a prior term of
supervised release. As to the former, Minora argues that the 30-month sentence
of imprisonment was unreasonable because it failed to account for his personal
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50950
c/w No. 11-50960
history. He contends that his alcoholism accounts for much of his criminal
history, which includes several convictions for driving while intoxicated (DWI).
Minora argues that the sentence overemphasizes moral culpability given that
he makes poor choices due to his addiction.
As Minora acknowledges, his failure to object to the reasonableness of the
sentence in the district court results in plain error review. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). He contends, however, that Peltier
was wrongly decided and that, given his request in the district court for a
sentence at the bottom of the guideline range, no further objection was necessary
to preserve his reasonableness challenge. Peltier, which remains controlling
precedent in this circuit, forecloses this argument, which he raises to preserve
the issue for further review.
To show the requisite plain error, Minora must demonstrate a clear or
obvious forfeited error that affected his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). This court has discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.“A discretionary sentence imposed within a properly calculated guidelines
range is presumptively reasonable.” United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008). Minora, again preserving an issue for further
review, argues that the presumption should not apply to his within-guidelines
sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not
empirically grounded. As Minora concedes, his challenge to the application of
the presumption of reasonableness is foreclosed. See United States v. Duarte,
569 F.3d 528, 529-30 (5th Cir. 2009).
A defendant’s mere belief that the mitigating factors presented for the
court’s consideration at sentencing should have been balanced differently does
not suffice to disturb the presumption of reasonableness. See United States v.
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No. 11-50950
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Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). The district court
determined that there was a need to protect the public from further crimes by
Minora in view of his numerous DWI convictions, several of which had resulted
in traffic accidents, and his willingness to illegally reenter the United States.
Minora advances no persuasive reason for this court to disturb the district
court’s choice of sentence. He has not rebutted the presumption of
reasonableness. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Accordingly, he has not shown plain error. See Puckett, 556 U.S. at 135.
Minora also challenges the reasonableness of the consecutive 24-month
revocation sentence imposed by the district court. He argues that the sentence,
which was within the advisory guideline range, see U.S.S.G. § 7B1.4(a), was
plainly unreasonable given that his illegal reentry offense was nonviolent and
did not indicate that he posed a danger to the public. He again asserts that his
substance abuse problem explains the majority of his criminal history, and he
contends that there was no need for the district court to structure its revocation
sentence to deter him from returning to the United States.
Generally, we review revocation sentences under the “plainly
unreasonable” standard. See United States v. Miller, 634 F.3d 841, 843 (5th
Cir.), cert. denied, 132 S. Ct. 496 (2011). Minora argues that the plainly
unreasonable standard should not apply and seeks to preserve the issue for
further review. Because Minora failed to object to any aspect of his revocation
sentence, this court’s review is for plain error. See United States v. Whitelaw,
580 F.3d 256, 259-60 (5th Cir. 2009).
A presumption of reasonableness applies to revocation sentences that are
within the advisory range. See United States v. Lopez-Velasquez, 526 F.3d 804,
809 (5th Cir. 2008). Minora fails to rebut the presumption of reasonableness
and has not demonstrated plain error. See Puckett, 556 U.S. at 135.
AFFIRMED.
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