United States v. Gregory Caletka , 443 F. App'x 21 ( 2011 )


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  •      Case: 11-30060     Document: 00511614555         Page: 1     Date Filed: 09/27/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    September 27, 2011
    No. 11-30060
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    GREGORY K. CALETKA,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 1:09-CR-299-1
    Before SMITH, GARZA, and DeMOSS, Circuit Judges.
    PER CURIAM:*
    Gregory K. Caletka was convicted pursuant to a guilty plea of committing
    Social Security fraud by making materially false statements.                     
    42 U.S.C. § 408
    (a)(3). He was sentenced at the low end of his sentencing guidelines range
    to an 18-month term of imprisonment. Caletka argues that the district court
    should have granted his request for a downward departure or variance and that
    its failure to do so resulted in a sentence that was greater than necessary to
    achieve the sentencing goals set forth in 
    18 U.S.C. § 3553
    (a). He contends that
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30060    Document: 00511614555      Page: 2    Date Filed: 09/27/2011
    No. 11-30060
    he was entitled to a shorter sentence in light of his severe physical impairments,
    his age, his lack of a criminal history, and his low risk of recidivism.
    We lack jurisdiction to consider whether the district court erred in denying
    Caletka a downward departure based on his physical impairments. We may
    review the denial of a downward departure only if the district court erroneously
    believed it lacked the authority to depart. United States v. Lucas, 
    516 F.3d 316
    ,
    350 (5th Cir. 2008). Caletka has not alleged, and the record does not indicate,
    that the district court believed it lacked that authority. At sentencing, the
    district court specifically noted that it could depart from the Sentencing
    Guidelines under U.S.S.G. § 5H1.4 if it determined that Caletka had an
    extraordinary physical impairment.
    We do have jurisdiction to consider whether, in light of the factors Caletka
    raised in support of his argument for a downward departure, Caletka’s sentence
    is greater than necessary to achieve the sentencing goals set forth in § 3553(a).
    Generally, we review criminal sentences for reasonableness under an abuse of
    discretion standard. Gall v. United States, 
    552 U.S. 38
    , 51 (2007). If, however,
    a defendant failed to object to an error at sentencing, we will review the issue for
    plain error only. Puckett v. United States, 
    129 S. Ct. 1423
    , 1429 (2009); United
    States v. Peltier, 
    505 F.3d 389
    , 391–92 (5th Cir. 2007). A sentence that falls
    within a defendant’s properly calculated guidelines range is entitled to a
    rebuttable presumption of reasonableness. United States v. Alonzo, 
    435 F.3d 551
    , 554 (5th Cir. 2006).
    In the district court Caletka requested a downward variance based on his
    physical infirmities, lack of criminal history, age, and low risk of recidivism, but
    he did not object to the reasonableness of the sentence imposed. It is unclear
    under those circumstances whether Caletka’s arguments are limited to plain
    error review. See Peltier, 
    505 F.3d at
    391–92 (holding that a defendant’s failure
    to object to the reasonableness of his sentence limits this court’s review to plain
    error); but see United States v. Rodriguez, 
    523 F.3d 519
    , 525–26 & n.1 (5th Cir.
    2
    Case: 11-30060   Document: 00511614555      Page: 3   Date Filed: 09/27/2011
    No. 11-30060
    2008) (reviewing for abuse-of-discretion a district court’s denial of a downward
    variance in a case where the defendant presented detailed assertions and
    testimony in support of the variance, but did not specifically object to the
    reasonableness of his sentence). This court need not resolve the issue because
    Caletka’s sentence may be affirmed even under the more lenient abuse of
    discretion standard.
    At sentencing, the district court considered and rejected Caletka’s
    arguments for a below guidelines sentence. It found that Caletka’s lack of
    criminal history was accounted for in the Guidelines and that his physical
    problems, age, and low risk of recidivism did not outweigh the serious nature of
    his offense. Although Caletka’s physical impairments could have supported a
    sentence below the guidelines range, he cannot show that they would mandate
    that result. See, e.g., United States v. Castillo, 
    430 F.3d 230
    , 240–41 (5th Cir.
    2005); United States v. Winters, 
    105 F.3d 200
    , 208–09 (5th Cir. 1997); United
    States v. Guarjardo, 
    950 F.2d 203
    , 208 (5th Cir. 1991). Caletka has presented
    nothing to indicate that the district court abused its discretion in weighing the
    § 3553(a) factors. See United States v. Gomez-Herrera, 
    523 F.3d 554
    , 565–66
    (5th Cir. 2008). His disagreement with the propriety of the sentence imposed
    does not suffice to rebut the presumption of reasonableness that attaches to his
    within-guidelines sentence. See United States v. Cooks, 
    589 F.3d 173
    , 186 (5th
    Cir. 2009), cert. denied 
    130 S. Ct. 1930
     (2010).
    AFFIRMED.
    3