United States v. Paiz , 313 F. App'x 727 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2009
No. 08-40658
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ELIAS PAIZ, JR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CR-4-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Elias Paiz, Jr., appeals his sentence following his guilty-plea conviction for
possession with intent to distribute 151.24 grams of crack cocaine and for being
a felon in possession of a firearm. Paiz argues that the district court plainly
erred by not applying the two-level reduction for crack cocaine offenses when
determining his base offense level.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40658
Paiz concedes that plain error applies because he failed to raise the issue
at the district court level. To establish plain error, the appellant must show an
error that is clear or obvious and that affects his substantial rights. United
States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962(2009). If the appellant makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). In
Gall v. United States, 128 S. Ct. 586, 596-97 (2007), the Supreme Court set out
a bifurcated approach for conducting a reasonableness review. An appellate
court must first determine whether the district court committed any significant
procedural error, such as failing to calculate or incorrectly calculating the
guidelines range, treating the Guidelines as mandatory, or failing to consider the
factors in § 3553(a). Id. at 597. If there is no procedural error, this court then
“consider[s] the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. at 597. Paiz’s argument on appeal concerns
only whether the district court committed a procedural error; he does not
otherwise argue the substantive reasonableness of the sentence.
The district court correctly applied the two-level reduction for crack
cocaine offenses set forth in the 2007 edition of the Sentencing Guidelines.
U.S.S.G., App’x C, amend. 706, at 226-31 (Supp. Nov. 1, 2007). Paiz has not
demonstrated that the district court erred, plainly or otherwise.
The judgment of the district court is AFFIRMED.
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