United States v. Jesus Trevino ( 2019 )

Case: 17-50585 Document: 00514902076 Page: 1 Date Filed: 04/04/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-50585
FILED
April 4, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ADALID MONTIEL-FIGUEROA, also known as Jesus Trevino,
Defendant-Appellant
-----------------------------------------------------
Consolidated with 17-51062
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS TREVINO, also known as Adalid Montiel-Figueroa,
Defendant-Appellant
-------------------------------------------------------
Consolidated with 17-51069
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ADALID MONTIEL-FIGUEROA, also known as Jesus Trevino,
Defendant-Appellant
Case: 17-50585 Document: 00514902076 Page: 2 Date Filed: 04/04/2019
No. 17-50585
c/w No. 17-51062
c/w No. 17-51069
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-1609-1
USDC No. 2:16-CR-438-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
In these consolidated appeals, Adalid Montiel-Figueroa, also known as
Jesus Trevino, appeals his illegal reentry conviction and sentence and the
revocation of his supervised release. The district court sentenced Montiel-
Figueroa to 36 months of imprisonment and three years of supervised release
for the illegal reentry conviction. The district court sentenced him to 24
months of imprisonment for the revocation of his supervised release, to run
consecutively to the illegal reentry sentence. For the reasons that follow, we
AFFIRM both judgments.
The claims of error that Montiel-Figueroa raises in his pro se brief
pertain to the illegal reentry conviction and sentence; Montiel-Figueroa does
not brief any challenge to the revocation of his supervised release. Therefore,
he has abandoned the appeal of the revocation, and the revocation judgment is
affirmed. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Montiel-Figueroa argues that the district court failed to provide notice
that it was considering a departure from the guidelines range; he seems to also
argue, with the benefit of liberal construction, that the district court erred in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50585
c/w No. 17-51062
c/w No. 17-51069
failing to provide notice that it was considering a variance from the guidelines
range. This claim of error is unavailing because the district court did not
impose a departure and was not required to give notice of the variance. See
Irizarry v. United States, 553 U.S. 708, 713-16 (2008).
Montiel-Figueroa also argues that the district court failed to adequately
explain the sentence. The record reflects that the district court primarily relied
on Montiel-Figueroa’s prior 57- and 87-month illegal reentry sentences and
cited relevant 18 U.S.C. § 3553(a) factors. This record “makes the sentencing
judge’s reasoning clear and allows for effective review; no further explanation
was required.” United States v. Fraga, 704 F.3d 432, 439 (5th Cir. 2013). There
was no error, plain or otherwise, in the adequacy of the explanation of the
sentence.
In the body of his brief, Montiel-Figueroa also argues that the sentence
was substantively unreasonable. He seems to argue that the district court
gave too much weight to his criminal history, which does not distinguish him
from other illegal reentry defendants; improperly relied on two uncounseled
prior convictions; failed to give him notice of its intent to rely on his
underrepresented criminal history; and effectively imposed a consecutive
sentence by failing to order that the sentence run concurrently with the
revocation sentence.
Montiel-Figueroa did not preserve a challenge to the district court’s
reliance on uncounseled convictions or the lack of notice, and these aspects of
his claim of error are subject to plain error review. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Given that the district
court relied primarily on the prior illegal reentry sentences to justify the
sentence, Montiel-Figueroa cannot show that his substantial rights were
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No. 17-50585
c/w No. 17-51062
c/w No. 17-51069
affected by the district court’s reliance on uncounseled convictions. See United
States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). The district court did not
err, plainly or otherwise, in failing to give Montiel-Figueroa notice of its intent
to vary from the guidelines range on the basis of his criminal history. See
Irizarry, 553 U.S. at 713-16. The district court gave compelling and case-
specific reasons for varying from the guidelines range and effectively imposing
a consecutive sentence, and Montiel-Figueroa’s disagreement with the district
court’s assessment of the § 3553(a) factors fails to show any abuse of discretion,
especially considering the deference given to the district court’s reasoning. See
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Smith, 440 F.3d
704, 708 (5th Cir. 2006). There was no error, plain or otherwise, in the
substantive reasonableness of the sentence.
The record is not sufficiently developed to allow us to make a fair
evaluation of Montiel-Figueroa’s claim of ineffective assistance of counsel; we
therefore decline to consider the claim without prejudice to collateral review.
See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). Finally, Montiel-
Figueroa waived his claim of error regarding the denial of his motion to dismiss
the indictment by entering an unconditional guilty plea. See United States v.
Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008).
AFFIRMED.
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