United States v. Jose Servellon , 534 F. App'x 252 ( 2013 )


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  •      Case: 12-50697       Document: 00512295916         Page: 1     Date Filed: 07/03/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 3, 2013
    No. 12-50697
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    JOSE HERNAN SERVELLON,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 2:11-CR-2107-1
    Before BENAVIDES, ELROD, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Jose Hernan Servellon filed a pro se notice of appeal from “the final
    Judgment in a Criminal Case entered in this action on the 3rd day of July, 2012,
    and filed on July 6, 2012.” In his brief, Servellon complains about the sentence
    imposed for his conviction for the offense of illegal reentry following deportation,
    
    8 U.S.C. § 1326
    (a), (b)(2), and the sentence imposed for revocation of supervised
    release, 
    18 U.S.C. § 3583
    (e)(3) (USDC No. 2:12-CR-532). The sentences were
    imposed after a joint hearing on both his illegal reentry case and his revocation
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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    No. 12-50697
    of supervised release case. We liberally construe his notice of appeal and
    address the challenges Servellon raises to both his illegal reentry sentence and
    his revocation sentence in No. 2:12-CR-532. See United States v. Knowles, 
    29 F.3d 947
    , 949 (5th Cir. 1994); Trust Co. Bank v. United States Gypsum Co., 
    950 F.2d 1144
    , 1148 (5th Cir. 1992).
    The district court sentenced Servellon to a 50-month term of imprisonment
    following his guilty plea to illegal reentry of a deported alien. See 
    8 U.S.C. § 1326
    . He argues that the sentence, which is in the middle of the advisory
    guidelines range, is substantively unreasonable because it is greater than
    necessary to accomplish the goals of sentencing set forth in 
    18 U.S.C. § 3553
    (a).
    Servellon did not present this argument in the district court. Thus, our
    review is for plain error. See United States v. Peltier, 
    505 F.3d 389
    , 392 (5th Cir.
    2007). Although Servellon challenges the application of the plain error standard,
    he concedes that his argument is foreclosed. See 
    id.
     To show plain error, the
    appellant must show a forfeited error that is clear or obvious and that affects his
    substantial rights. Puckett v. United States, 
    556 U.S. 129
    , 135 (2009). If the
    appellant makes such a showing, we have the discretion to correct the error but
    only if it seriously affects the fairness, integrity, or public reputation of judicial
    proceedings. 
    Id.
    We have consistently rejected Servellon’s argument that U.S.S.G. § 2L1.2
    results in an excessive sentence because it is not empirically based. See United
    States v. Duarte, 
    569 F.3d 528
    , 529-30 (5th Cir. 2009). We also have rejected the
    “double counting” and “international trespass” arguments that he asserts. See
    id.; United States v. Aguirre-Villa, 
    460 F.3d 681
    , 683 (5th Cir. 2006).
    Servellon contends that the § 2L1.2 Guideline resulted in an advisory
    guidelines range that overstated the seriousness of his offense of conviction and
    failed to account for his benign motives for returning to the United States. At
    sentencing, the district court considered the advisory guidelines range;
    Servellon’s request for a sentence at the low end of the advisory guidelines
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    No. 12-50697
    range; Servellon’s statement in allocution; and the factors identified in § 3553.
    The district court determined that a 50-month sentence was appropriate. The
    record thus reflects that the district court made an individualized determination
    at sentencing based on the facts presented and in light of the § 3553(a) factors.
    See Gall v. United States, 
    552 U.S. 38
    , 50 (2007).
    “[A] sentence within a properly calculated Guideline range is
    presumptively reasonable.” United States v. Alonzo, 
    435 F.3d 551
    , 554 (5th Cir.
    2006); Rita v. United States, 
    551 U.S. 338
    , 347 (2007). Servellon has not shown
    that the district court failed to give proper weight to his arguments or to any
    particular § 3553(a) factor. See United States v. Cooks, 
    589 F.3d 173
    , 186 (5th
    Cir. 2009). He has failed to rebut the presumption of reasonableness that
    attaches to his within-guidelines sentence, see Alonzo, 
    435 F.3d at 554-55
    ; and
    he has not shown that the district court plainly erred. See Puckett, 
    556 U.S. at 135
    ; United States v. Gomez-Herrera, 
    523 F.3d 554
    , 565-66 (5th Cir. 2008).
    The district court sentenced Servellon to a consecutive 10-month sentence
    following the revocation of his supervised release. See 
    18 U.S.C. § 3583
    (e)(3).
    He argues that the district court committed procedural error by failing to
    adequately explain it, and he asserts that the consecutive nature of the sentence
    renders it substantively unreasonable. Servellon did not object in the district
    court. Our review is for plain error. See United States v. Whitelaw, 
    580 F.3d 256
    , 259-60 (5th Cir. 2009).
    Because the 10-month sentence was within the range recommended by the
    policy statements and within the statutory maximum term of imprisonment that
    the district court could have imposed, see § 3583(e)(3); U.S.S.G. § 7B1.4(a), the
    district court was not required to provide a lengthy explanation. See Rita, 
    551 U.S. at 356
    . The district court considered the parties’ arguments and had a
    reasoned basis for choosing the 10-month sentence. See 
    id.
     Servellon fails to
    show that a further explanation would have resulted in a lesser sentence. He
    thus fails to show that error, if any, affected his substantial rights. See United
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    States v. Mondragon-Santiago, 
    564 F.3d 357
    , 364-65 (5th Cir. 2009). Finally, we
    have repeatedly upheld as reasonable within-guidelines revocation sentences
    ordered to run consecutively to the sentence for the criminal offense leading to
    the revocation. United States v. Ramirez, 264 F. App’x 454, 458-59 (5th Cir.
    2008) (collecting cases). Servellon has not shown plain error. See Whitelaw, 
    580 F.3d at 259-60
    .
    Accordingly, the district court’s judgment is AFFIRMED.
    4