United States v. Recio-Rosas ( 2023 )

Case: 22-40720 Document: 00516853023 Page: 1 Date Filed: 08/10/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 10, 2023
No. 22-40720 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Alejandro Recio-Rosas,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:22-CR-547-1
______________________________
Before Richman, Chief Judge, and Jones and Ho, Circuit Judges.
Per Curiam: *
I.
Recio-Rosas, a citizen of Mexico, has been deported from the United
States repeatedly over the past three decades. The list of crimes he has
committed in the United States is extensive. He has been convicted of two
felony burglaries. He has been convicted of theft multiple times, on dates
ranging from 1995 to 2016. He has been convicted of assault—for domestic
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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violence toward a woman. This is not to mention his other assorted
convictions, ranging from a false claim of U.S. citizenship, to tampering with
a government record, to evading arrest, and beyond.
Most recently, Recio-Rosas pleaded guilty to illegally reentering the
United States after a prior deportation, in violation of 8 U.S.C. § 1326. At
the time of this offense, Recio-Rosas was 51 years old, but had only spent one
year of his adult life in Mexico, his country of citizenship.
Under the Sentencing Guidelines, Recio-Rosas’s recommended
range spanned from 3 years and 10 months (46 months) to 4 years and 9
months (57 months). But “[c]onsidering the need to promote respect for the
law and to deter further criminal conduct,” and in light of Recio-Rosas’s
extensive criminal history, the district court sentenced Recio-Rosas to 6 years
(72 months).
Recio-Rosas now challenges his sentence as procedurally and
substantively unreasonable. As Recio-Rosas concedes, the district court
correctly calculated the Guidelines range as 46 to 57 months. He nonetheless
objects to the upward departure from the Guidelines range.
Although Recio-Rosas raises other objections to that upward
departure, he chiefly objects to two misstatements by the district judge: (1)
During the spoken sentencing colloquy, the district judge remarked:
“Altogether I counted six—six theft offenses, you know.” Yet, with the two
burglaries excluded, Recio-Rosas was only convicted of four theft offenses.
(2) Likewise, the district judge remarked: “You violate your probation.
Because even though you’re deported, you come right back. And you end up
having to serve a sentence of seven years in connection with that case.” But,
although Recio-Rosas was sentenced to 7 years for that offense, he did not
ultimately serve the entire 7-year sentence.
We reject Recio-Rosas’s challenges. We thus affirm his sentence.
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II.
As Recio-Rosas concedes, he failed to raise his procedural
reasonableness challenge in district court. So we review the procedural
reasonableness of the sentence for plain error. See United States v. Coto-
Mendoza, 986 F.3d 583, 585 (5th Cir. 2021) (“[I]f the defendant failed to
object to a procedural error, we review only for plain error.”).
Plain error review has four prongs. See Puckett v. United States, 556
U.S. 129, 135 (2009). There must be (1) an error that (2) is clear or obvious,
that (3) has affected the appellant’s substantial rights, and that also
(4) “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id.The Government concedes that the district court mistakenly counted
six prior theft convictions when there were only four, and mistakenly
suggested that Recio-Rosas had served 7 years for a 1991 vehicle burglary
conviction, when he actually served 10 months of the 7-year sentence. These,
the Government admits, were obvious errors.
Yet the Government argues, and we agree, these misstatements did
not affect Recio-Rosas’s substantial rights. Nor did they impugn the fairness,
integrity, or reputation of the proceedings.
A.
We conclude that the two isolated misstatements did not affect Recio-
Rosas’s substantial rights. The two misstatements were unimportant and did
not form the basis of the district court’s decision to depart upward from the
Guidelines range.
In sentencing Recio-Rosas, the district court detailed his extensive
criminal history—and did so accurately, apart from the two conceded
misstatements. Although he had been deported in March 2021, he illegally
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re-entered in March 2022. Recio-Rosas had, at various points, committed
theft, evaded arrest, tampered with government records, and committed
assault. Moreover, when Recio-Rosas had initially entered the country at age
twenty, he immediately committed burglary of a vehicle. The district judge
went on to explain:
I believe, considering all the 3553(a) factors, that it is necessary to
sentence you to something above the Guideline range. Because
looking at the history here, you have, throughout the period of time
that you have been in our country, engaged in conduct that has landed
you before a Court.
You have numerous convictions here. And even, despite a sentence
of 70 months for a reentry charge, as well as a sentence of 63 months,
here you are once again.
I believe it would send the wrong message to sentence you to
something less than the 63 months. The Court believes it is necessary
to sentence you to something more than that. Considering the need
to promote respect for the law and to deter further criminal conduct,
I am going to sentence you to a term of 72 months in custody.
The district court also adequately explained its variance from the
Guidelines in its written statement of reasons:
The Court found that a variance above the guideline imprisonment
range was warranted due to the defendant’s continued disregard of
the law. Specifically, while in the U.S. the defendant has continued to
engage in criminal conduct and has two prior illegal reentry
convictions.
The two misstatements that Recio-Rosas highlights simply did not affect the
district court’s bottom-line conclusion.
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Moreover, these misstatements go more to style than to substance.
The district court imprecisely referred to Recio-Rosas’s six theft convictions:
“Altogether I counted six—six theft offenses, you know.” But this was likely
just a colloquial way of adding his four theft convictions to his two burglary
convictions.
Many English speakers do not carefully distinguish between “theft”
and “burglary.” Cf. Merriam-Webster Thesaurus, s.v. theft (listing
“burglary” as a synonym of “theft”); id. s.v. burglary (listing “theft” as a
synonym of “burglary”). District judges are not necessarily any different,
especially when, as here, they are speaking rather than writing. Substantial
rights don’t require linguistic pedantry.
Similarly, the district court’s misstatement about the 7 years did not
go to Recio-Rosas’s substantial rights. “You violate your probation. Because
even though you’re deported, you come right back. And you end up having
to serve a sentence of seven years in connection with that case.” The
imprecision was that, although Recio-Rosas was sentenced to 7 years, he only
served part of that time.
Taken in its colloquial context, however, the district judge’s
statement need not literally mean that Recio-Rosas spent 7 years in prison.
When he was originally sentenced, he was told he would “have[] to” serve 7
years. And the history of repeated violations—“even though you’re
deported, you come right back”—is what’s important to the district court’s
analysis, not the precise length of the sentence initially given or ultimately
served.
Circuit precedent is also clear that these isolated misstatements did
not affect Recio-Rosas’s substantial rights. In United States v. Johnson, 943
F.3d 735 (5th Cir. 2019), the district judge made a misstatement during
sentencing: “In 2006 . . . you had dope and you were carrying a weapon.” Id.5
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at 739. Yet the record showed that the 2006 arrest was for unlawfully
carrying a gun in a school zone, with no apparent drug involvement. Id. at
740. The panel held that this “single misstatement, when considered in the
context of the record as a whole, did not affect Johnson’s substantial rights.”
Id. This was especially so given that the district court “relied on and adopted
the [Presentencing Report], which correctly reflects that Johnson’s 2006
conviction was only gun-related.” Id. at 739.
Similarly here, the isolated misstatements do not affect Recio-Rosas’s
substantial rights when considered against his extensive criminal record.
And there’s no reason to think that the misstatements were anything more
than that—isolated misstatements—given that the district court expressly
adopted the Presentencing Report. As incorporated into the district court’s
statement of reasons, the Presentencing Report accurately summarized
Recio-Rosas’s criminal history.
We conclude that the two isolated misstatements Recio-Rosas points
to did not affect his substantial rights.
B.
Although that is enough to reject Recio-Rosas’s procedural
reasonableness challenge to his sentence, we also conclude that Recio-Rosas
fails on the fourth prong of plain error review. The misstatements do not
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. As the Government argues, Recio-Rosas’s extensive three-
decade criminal history amply warrants the 6-year sentence, which departs
upward from the maximum Guidelines sentence by just 1 year and 3 months.
Because Recio-Rosas fails on both the third and the fourth prongs of
plain error review, we reject his procedural reasonableness challenge to his
sentence.
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III.
Recio-Rosas also challenges the substantive unreasonableness of the
sentence. As the Government concedes, Recio-Rosas preserved this
objection in district court. Still, we review the substantive reasonableness of
the sentence only for abuse of discretion. See Gall v. United States, 552 U.S.
38, 51 (2007). “Appellate review of the substantive reasonableness of a
sentence is highly deferential.” United States v. Hoffman, 901 F.3d 523, 554
(5th Cir. 2018) (cleaned up).
Recio-Rosas argues that the sentence is substantively unreasonable
because it overweighs—or double-counts—his criminal history, which was
already factored into the Guidelines calculation. This argument is foreclosed
by precedent. United States v. Zarco-Beiza, 24 F.4th 477, 480 (5th Cir. 2022)
(“[W]e have rejected the contention that the district court may not rely on
factors already encompassed within the guidelines to support a non-
guidelines sentence.”) (cleaned up); United States v. Key, 599 F.3d 469, 475
(5th Cir. 2010) (“[G]iving extra weight to circumstances already
incorporated in the guidelines . . . is within the discretion of the sentencing
court.”)
Recio-Rosas also contends that the sentence is substantively
unreasonable because his criminal history included a past sentence that had
been inflated by a now-obsolete enhancement. Yet Recio-Rosas cites no
authority, and we are aware of none, establishing that a district court may not
consider a sentence that resulted from a subsequently-abolished
enhancement. We therefore reject this argument.
Finally, Recio-Rosas contends that the sentence is substantively
unreasonable because it is outside of the norm for illegal reentry offenders.
But this argument is foreclosed by precedent. See United States v. Hernandez,
633 F.3d 370, 379 (5th Cir. 2011) (“[A]n argument premised primarily on
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sentencing disparity is insufficient to render a sentence substantively
unreasonable.”).
And we have previously affirmed the substantive reasonableness of a
72-month sentence for illegal re-entry. See United States v. Lopez-Velasquez,
526 F.3d 804, 807 (5th Cir. 2008) (“[The criminal defendant] has not shown
his seventy-two-month sentence is substantively unreasonable.”). We
conclude that this sentence was substantively reasonable, as well.
***
We accordingly affirm the sentence.
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