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United States v. Juan Barajas , 593 F. App'x 384 ( 2015 )


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  •      Case: 14-10495       Document: 00512931897         Page: 1     Date Filed: 02/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10495                                   FILED
Summary Calendar                          February 10, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JUAN EDGAR BARAJAS, also known as Pelon,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-81
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Juan Edgar Barajas challenges the below Sentencing Guidelines
sentencing-range sentence imposed following his conviction for conspiracy to
possess, with intent to distribute, methamphetamine, in violation of 21 U.S.C.
§§ 841, 846. After granting both a three-level downward departure, pursuant
to Guideline § 5K1.1 (allowing the court to depart from the advisory
Guidelines-sentencing range for defendants who “provided substantial
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 14-10495     Document: 00512931897      Page: 2    Date Filed: 02/10/2015
No. 14-10495
assistance in the investigation or prosecution of another person who has
committed an offense”), and a two-level downward variance, in response to a
proposed amendment to the Guidelines, the court sentenced Barajas to, inter
alia, 188 months’ imprisonment.
Barajas claims the below-Guidelines sentence is greater than necessary
to accomplish the objectives of 18 U.S.C. § 3553(a) (sentencing factors) because
it fails to take into account his personal circumstances and characteristics,
specifically his lifelong drug addiction, his introduction to the drug-trafficking
business at age 11, and his age at the time of the offense.
Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States,
    552 U.S. 38
    , 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez,
    517 F.3d 751
    , 764 (5th Cir. 2008). As discussed above,
Barajas does not claim procedural error.
Because Barajas did not object to the reasonableness of his sentence in
district court, review is only for plain error. E.g., United States v. Peltier,
    505 F.3d 389
    , 391–92 (5th Cir. 2007).       Under that standard, he must show a
forfeited plain (clear or obvious) error that affected his substantial rights.
Puckett v. United States,
    556 U.S. 129
    , 135 (2009). If he does so, we have the
discretion to correct the error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings.
    Id. (Barajas claims 
    an objection is unnecessary to preserve his substantive unreasonableness
challenge. Although he recognizes his claim is foreclosed by our precedent, e.g.,
2
Case: 14-10495    Document: 00512931897     Page: 3   Date Filed: 02/10/2015
No. 14-10495
    Peltier, 505 F.3d at 391
    –92, he raises it to preserve it for possible further
review.)
Barajas fails to show the requisite clear or obvious error. (His claim
would also fail under the above-described abuse-of-discretion standard.) As an
initial matter, within-Guidelines sentences are presumed to be reasonable.
United States v. Mondragon-Santiago,
    564 F.3d 357
    , 360 (5th Cir. 2009).
Further, below-Guidelines sentences are also presumptively reasonable. E.g.,
United States v. Garcia, 535 F. App’x 397, 397 (5th Cir. 2013); see also United
States v. Lopez, 461 F. App’x 372, 374 (5th Cir. 2012).
The court considered Barajas’ arguments in mitigation, the factors of 18
U.S.C. § 3553(a), and the Guidelines, and determined that a 188-month, below-
Guidelines sentence was appropriate. Barajas’ asserting the court should have
sentenced him more leniently merely reflects his disagreement with the
propriety of his sentence. E.g., United States v. Ruiz,
    621 F.3d 390
    , 398 (5th
Cir. 2010); United States v. Cooks,
    589 F.3d 173
    , 186 (5th Cir. 2009).
AFFIRMED.
3