United States v. Luis Torres , 467 F. App'x 324 ( 2012 )

Case: 11-20658 Document: 00511841886 Page: 1 Date Filed: 05/02/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 2, 2012
No. 11-20658
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS ANDRADE TORRES, also known as Luis Torres Andrade, also known as
Luis Andrade-Torres, also known as Rafael Andrade, also known as Luis
Hernandez, also known as Luis Andreade,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-307-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Luis Andrade Torres (Andrade) appeals the sentence
imposed for his conviction for illegal reentry. He was sentenced within the
guidelines range to 46 months of imprisonment with a one-month credit for the
time he spent in immigration custody and two years of supervised release. He
contends that his sentence is substantively unreasonable because the district
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20658
court failed to give appropriate weight to the remoteness of his most significant
criminal history, his subsequent rehabilitation, and the fact that he was arrested
on an outbound flight to Mexico. He also claims that the district court gave too
much weight to his other criminal history and traffic citations and improperly
considered his traffic-related arrests.
We review Andrade’s claim of error regarding the consideration of his
arrests for plain error, as Andrade’s general objection to the reasonableness of
his sentence was not “sufficiently specific to alert the district court to the nature
of the alleged error and to provide an opportunity for correction.” United States
v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). The remainder of his claim of error
is preserved.
To show plain error, Andrade must demonstrate that the error was clear
or obvious and affects his substantial rights. Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes such a showing, we have the discretion to correct
the error but only if it “‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (alteration in original) (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)).
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence imposed
within a properly calculated guidelines range is presumed to be reasonable.
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). “The
presumption is rebutted only on a showing that the sentence does not account
for a factor that should receive significant weight, it gives significant weight to
an irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).
Andrade has not shown that the weight the district court gave to his
criminal convictions and traffic citations, rehabilitation, and arrest on an
outbound flight to Mexico represents a clear error of judgment. “[T]he staleness
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of a prior conviction used in the proper calculation of a guidelines-range sentence
does not render a sentence substantively unreasonable and does not destroy the
presumption of reasonableness that attaches to such sentences.” United States
v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011). The fact that Andrade was
arrested on an outbound flight to Mexico does not indicate whether Andrade
intended to leave the United States permanently. Andrade’s disagreement with
the weight given by the district court to his other criminal history and
rehabilitative efforts is insufficient to rebut the presumption of reasonableness.
See Gall, 552 U.S. at 51.
It was plainly erroneous, however, for the district court to consider
Andrade’s prior arrests when imposing sentence, given that there was
insufficient indicia of reliability. See United States v. Johnson, 648 F.3d 273,
277-78 (5th Cir. 2011). As to whether the error affected his substantial rights,
however, Andrade offers no argument. Therefore, he has not met his burden of
demonstrating that there is a reasonable probability that he would have received
a lower sentence had the district court not considered the arrests. Cf. United
States v. Sandlin, 589 F.3d 749, 757 (5th Cir. 2009).
Andrade raises one additional issue, which he acknowledges is foreclosed
by our precedent, to preserve for further review. He contends that the
presumption of reasonableness should not be applied to his sentence because
§ 2L1.2, the illegal reentry Guideline, lacks an empirical basis. We have
consistently rejected Andrade’s argument, concluding that Kimbrough v. United
States, 552 U.S. 85 (2007), does not question the presumption of reasonableness
and does not require district or appellate courts to independently analyze the
empirical grounding behind each individual guideline. See United States v.
Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
The record does reveal a clerical error in the judgment with respect to the
description of the offense. See FED. R. CRIM. P. 36. The judgment should be
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modified to reflect that Andrade was convicted of illegal reentry by a previously
deported alien after a felony conviction and that he was sentenced under 8
U.S.C. § 1326(b)(1).
The district court’s judgment is AFFIRMED. This matter is REMANDED
for correction of the clerical error pursuant to Federal Rule of Criminal
Procedure 36.
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