United States Court of Appeals, Fifth CircuitAug 31, 2009
344 Fed. Appx. 882 (5th Cir. 2009)

No. 08-51225 Summary Calendar.

August 31, 2009.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.

Philip J. Lynch, Henry Joseph Bemporad, Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 2:08-CR-334-ALL.

Before DAVIS, BARKSDALE, and GARZA, Circuit Judges.

Pedro Castillo-Mendoza, a citizen of Mexico, pleaded guilty to a one-count indictment charging him with illegal reentry into the United States, in violation of 8 U.S.C. § 1326. His advisory Guidelines' sentencing range was calculated to be 77 to 96 months; and he was sentenced, inter alia, to 77 months' imprisonment. Castillo does not challenge the calculation of his sentencing range; instead, he claims the 77-month sentence imposed is substantively unreasonable.

In that regard, Castillo urges his sentence is substantively unreasonable because the district court could not consider a claimed sentencing disparity resulting from the absence of a "fast-track" early-disposition program. Castillo correctly acknowledges that this issue is foreclosed by United States v. Gomez-Herrera, 523 F.3d 554, 563 n. 4 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008).

Castillo also urges his sentence is substantively unreasonable because: the district court did not adequately consider his motives for returning to the United States; the Guidelines give too much weight to his criminal history; and his within-Guidelines sentence overstates the seriousness of his offense conduct. Our court normally "considers the `substantive reasonableness of the sentence imposed under an abuse-of-discretion standard'". United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Moreover, "[i]f the sentence is within the Guideline range, the appellate court may . . . apply a presumption of reasonableness". Gall, 128 S.Ct. at 597. (We need not decide whether Castillo's requests, in district court, for a below-Guidelines sentence preserved review for reasonableness under the usual abuse-of-discretion, vice plain-error, standard, because his sentence is affirmed under either standard. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2959, 171 L.Ed.2d 892 (2008).)

The district court explained that it determined the within-Guidelines, 77-month sentence to be "a fair and reasonable sentence" after considering the advisory Guidelines and their policy statements, the 18 U.S.C. § 3553(a) factors, Castillo's allocution, and the factual information contained in the presentence investigation report. The district court: acknowledged that the advisory sentence was "a pretty healthy sentence"; but stated that it was particularly troubled by the serious nature of Castillo's numerous prior offenses, including burglary of a habitation, attempted burglary of a habitation, forgery with intent to pass, aggravated robbery, robbery, and failure to appear. Castillo has not rebutted the presumption that his sentence is reasonable or otherwise established error.