United States v. Arriaga , 334 F. App'x 649 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 22, 2009
    No. 08-41066
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    WALBERTO ARRIAGA
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:08-CR-443-1
    Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
    PER CURIAM:*
    Walberto Arriaga appeals the 18-month sentence imposed following his
    guilty-plea conviction for making a false statement in connection with the
    acquisition of a firearm. Arriaga contends that his sentence is procedurally and
    substantively unreasonable.          He argues that the district court committed
    reversible procedural error because it failed to provide reasons for both Arriaga’s
    within-guidelines sentence and its denial of his nonfrivolous arguments for a
    below-guidelines sentence. Arriaga also argues that the sentence is excessive
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    No. 08-41066
    and greater than necessary to accomplish the sentencing objectives of 
    18 U.S.C. § 3553
    (a). According to Arriaga, the guidelines range overpunished him for
    extraneous offenses. He also notes his “actual role in this non-violent offense”
    and his good behavior while on bond.
    Because Arriaga failed to raise his procedural objection in the district
    court, review is for plain error. See United States v. Lopez-Velasquez, 
    526 F.3d 804
    , 806 (5th Cir.), cert. denied, 
    129 S. Ct. 625
     (2008). To show plain error,
    Arriaga must show an error that is clear or obvious and that affects his
    substantial rights. See United States v. Baker, 
    538 F.3d 324
    , 332 (5th Cir. 2008),
    cert. denied, 
    129 S. Ct. 962
     (2009); see also Puckett v. United States, 
    129 S. Ct. 1423
    , 1429 (2009). If he 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. Baker, 
    538 F.3d at 332
    .
    The record reflects that the district court denied Arriaga’s request for a
    below-guidelines sentence without reasons.        The explanation for Arriaga’s
    sentence was as follows: “The court adopts the factual findings and guideline
    applications in the presentence investigation report. It’s the judgment of the
    court that the defendant, Walberto Arriaga, is hereby committed to the custody
    of the Bureau of Prisons to be imprisoned for a term of 18 months.” Also, in its
    statement of reasons, the district court indicated that “[t]he sentence is within
    an advisory guideline range that is not greater than 24 months, and the court
    finds no reason to depart.” Arriaga is correct that the district court did not
    adequately explain its reasons for the sentence imposed. See United States v.
    Mondragon-Santiago, __ F.3d __, 
    2009 WL 782894
    , at *5 (5th Cir. Mar. 26,
    2009). However, Arriaga’s 18-month sentence is within the advisory guidelines
    range. Furthermore, he fails to show that an explanation for his sentence would
    have changed his 18-month sentence. Thus, Arriaga has failed to show that the
    district court’s error affected his substantial rights. See 
    id. at *7
    .
    2
    No. 08-41066
    With regard to his substantive reasonableness challenge, Arriaga contends
    that review should be for an abuse of discretion, not plain error, because he
    requested a shorter sentence based upon the same issues that he raises now. We
    need not determine, however, whether plain-error review is appropriate in this
    case because Arriaga is not entitled to relief even assuming that he preserved
    the substantive reasonableness issue for review. See United States v. Rodriguez,
    
    523 F.3d 519
    , 525 (5th Cir.), cert. denied, 
    129 S. Ct. 624
     (2008).
    Arriaga fails to establish that his sentence is substantively unreasonable.
    His within-guidelines sentence is entitled to a presumption of reasonableness.
    See United States v. Alonzo, 
    435 F.3d 551
    , 554 (5th Cir. 2006). The district court
    heard    the   Government’s    recommendation      regarding   a   “fair”   term   of
    imprisonment. The district court also heard Arriaga’s arguments concerning his
    age, his role in the offense, his behavior while on bond, and his lack of a criminal
    history but elected to impose a sentence at the low end of the advisory guidelines
    range. Arriaga has not demonstrated that his within-guidelines sentence was
    an abuse of discretion by the district court. See Alonzo, 
    435 F.3d at 554
    .
    Accordingly, the judgment of the district court is AFFIRMED.
    3
    

Document Info

Docket Number: 08-41066

Citation Numbers: 334 F. App'x 649

Judges: Jones, Owen, Per Curiam, Stewart

Filed Date: 6/22/2009

Precedential Status: Non-Precedential

Modified Date: 8/2/2023