United States v. Luna ( 2023 )

Case: 22-40793 Document: 00516843365 Page: 1 Date Filed: 08/02/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-40793
FILED
August 2, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Luna,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:22-CR-792-1
______________________________
Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam:*
Jose Luna pleaded guilty to conspiracy to transport undocumented
aliens within the United States, in violation of 8 U.S.C. § 1324(a)(1)(v)(I),
and was sentenced to 12 months of imprisonment, followed by a three-year
term of supervised release, and ordered to pay a $150,000 fine. For the first
time on appeal, he challenges the above-guidelines fine, urging that it was
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40793 Document: 00516843365 Page: 2 Date Filed: 08/02/2023
No. 22-40793
substantively unreasonable because the district court gave significant weight
to irrelevant and improper factors, including his socioeconomic status and
a prior arrest not resulting in a conviction. Luna also complains that the
district court wholly failed to consider the factors appliable under U.S.S.G.
§ 5E1.2 and 18 U.S.C. § 3572.
Because Luna did not object to the fine at sentencing, this court’s
review is limited to plain error. See United States v. Brantley, 537 F.3d 347,
351 (5th Cir. 2008). To establish plain error, he must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 134-35 (2009). If he makes such a showing, this court
has discretion to correct the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.The record reflects that the district court considered the advisory
guidelines fine range, the statutory maximum fine, the § 3553(a) factors, the
facts set forth in the Presentence Report (PSR), Luna’s arguments in
mitigation of sentence, and the Government’s request for an above-
guidelines fine. Inasmuch as Luna asserts that the district court
impermissibly relied on his socioeconomic status to impose an above-
guidelines fine, his argument is not well-taken. The district court’s
comments indicate that it did not consider Luna’s financial status in
imposing the fine but considered the financial motivation or lack thereof as
part of the nature and circumstances of Luna’s offense, as well as the need
for the sentence imposed to promote respect for the law, just punishment,
and adequate deterrence, all proper considerations. See 18 U.S.C.
§§ 3553(a)(1), (A)(2)(A); U.S.S.G. § 5E1.2(d); see also Puckett, 556 U.S. at
135.
To the extent that Luna contends that the district court erred in failing
to explain its specific consideration of the factors set forth in § 3572 and
2
Case: 22-40793 Document: 00516843365 Page: 3 Date Filed: 08/02/2023
No. 22-40793
§ 5E1.2(d), the argument is similarly unavailing. Because the PSR did not
recommend against imposing a fine, it did not trigger any requirement that
the district court make express findings regarding the fine. See Brantley,
537 F.3d at 351-52; see also United States v. Voda, 994 F.2d 149, 155 n. 14 (5th
Cir. 1993). Implicit in the district court’s adoption of the PSR and imposition
of a fine was its consideration of Luna’s ability to pay, based on his financial
resources, as is required by both § 3572 and § 5E1.2(d). Luna does not now
affirmatively assert that he cannot pay the fine. Rather, he complains that
the district court failed to consider his “full financial picture,” including
numerous debts he failed to disclose to the Probation Officer prior to the
preparation of the PSR, which he now urges show that the fine imposed was
excessive. When denying Luna’s postjudgment motions raising the same
argument as untimely and unauthorized, the district court refused to
consider this evidence, and we will not do so for the first time on appeal. See
Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
Luna additionally argues that the district court impermissibly
considered his “bare arrest record” when it varied upwardly from the
guidelines fine range, citing United States v. Johnson, 648 F.3d 273, 278 (5th
Cir. 2011). Even assuming arguendo that the district court clearly or
obviously erred in referencing Luna’s prior arrest, Luna fails to demonstrate
that any such error amounted to reversible plain error. Although he
conclusionally asserts that the error affected his substantial rights, Luna
abandons by failing to brief any argument demonstrating that, but for the
district court’s reference to or reliance on his prior arrest, he would have
received a lesser fine. See United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir.
1996); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986); see also Puckett,
556 U.S. at 135; United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th
Cir. 2009). Even had he briefed the argument, it would be unavailing given
the other proper considerations on which the district court relied to impose
3
Case: 22-40793 Document: 00516843365 Page: 4 Date Filed: 08/02/2023
No. 22-40793
an above-guidelines fine and given Luna’s failure to demonstrate an inability
to pay. See §§ 3553(a)(1), (A)(2)(A); § 5E1.2(d); Mondragon-Santiago, 564
F.3d at 364; see also See United States v. McElwee, 646 F.3d 328, 339-40 (5th
Cir. 2011).
Moreover, Luna makes no attempt to meet the fourth prong of plain
error review. See United States v. Cabello, 33 F.4th 281, 285 (5th Cir. 2022);
see also Still, 102 F.3d at 122 n.7; Beasley, 798 F.2d at 118. This court has
refused to correct plain errors “when, as here, the complaining party makes
no showing as to the fourth prong.” United States v. Caravayo, 809 F.3d 269,
273-74 (5th Cir. 2015) (internal quotation marks and citation omitted).
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
4