United States v. Jose Sosa-Almontes , 451 F. App'x 441 ( 2011 )

Case: 11-40408 Document: 00511678910 Page: 1 Date Filed: 11/29/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 29, 2011
No. 11-40408
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE LUIS SOSA-ALMONTES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-920-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Luis Sosa-Almontes (Sosa) appeals his
conviction and 27-month within-guidelines sentence, following his conditional
guilty plea to being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1),
924(a)(2). Sosa contends that the district court erred in denying his motion to
suppress the evidence of the firearm seized from his vehicle. In denying Sosa’s
motion to suppress, the district court determined that probable cause existed for
Sosa’s arrest and that his consent to search the vehicle was voluntary. In the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40408
alternative, the court determined that even if Sosa’s consent to the search was
not voluntary, there was probable cause for an arrest, so the firearm would have
been found routinely in a lawful inventory search of the vehicle. Sosa has failed
to challenge on appeal the district court’s determination that, even if his consent
was not voluntary, the firearm would have been discovered in an inventory
search of the vehicle. Accordingly, he has abandoned review of that issue. See
United States v. Beaumont, 972 F.2d 553, 563 (5th Cir.1992). Sosa has not
demonstrated that the district court’s denial of his motion to suppress the
evidence was erroneous.
Sosa asserts that his within-guidelines sentence violates the Fifth and
Sixth Amendments and is unreasonable under United States v. Booker, 543 U.S.
220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), because (1) his
criminal history score included points for a 2003 simple possession conviction,
which constituted double counting, and (2) he had become a model and
productive citizen, working mainly to assist his ailing mother.
As Sosa did not raise either of these appellate arguments in the district
court, we review for plain error only. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009); United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). 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, 129 S. Ct. 1423, 1429 (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.
To the extent that Sosa asserts that his 2003 conviction, for which he was
assigned three criminal history points, was for simple possession of a controlled
substance, he is incorrect. That prior conviction was for possession with intent
to deliver a controlled substance. To the extent that Sosa raises a double-
counting argument, it is unavailing. See United States v. Hawkins, 69 F.3d 11,
14-15 (5th Cir. 1995).
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“[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). Sosa’s assertion that he had become a model and productive citizen,
working mainly to assist his ailing mother, is insufficient to rebut the
presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008); United States v. Rodriguez, 523 F.3d 518, 526 (5th
Cir. 2008). Sosa has not shown that his sentence is unreasonable and has not
rebutted the presumption of reasonableness that attaches to his within-
guidelines sentence. See Alonzo, 435 F.3d at 554-55. Sosa has not shown that
the district court abused its discretion under Gall v. United States, 552 U.S. 38,
49-51 (2007), and thus has shown no error, plain or otherwise. Accordingly, the
judgment of the district court is AFFIRMED.
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