United States v. Campos-Maldonado

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 11, 2008

No. 07-20715

Summary Calendar Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CORANDO CAMPOS-MALDONADO, also known as Corando Campos

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-48-1

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:

Corando Campos-Maldonado (Campos) pleaded guilty to one count of

unlawful reentry, in violation of 8 U.S.C. § 1326. The district court sentenced

him to 57 months in prison, within the guidelines range. Campos now appeals.

The presentence report (PSR) calculated the guidelines range as 57 to 71

months, which included a 16-level crime of violence enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(A), based on Campos’s prior conviction for assault with a

deadly weapon. Campos argued that the district court should impose a below-

guidelines sentence of 24 to 30 months. He asserted that the 16-level

enhancement overstated the seriousness of his prior offense, arguing (1) that the

offense should have been treated as at most an aggravated felony rather than a

No. 07-20715

crime of violence and, (2) that the offense was a youthful aberration. He raised

other grounds for a non-guidelines sentence, including his subsequent history

of non-violence and his lack of incentive to return to the United States. The

district court indicated that it had considered Campos’s arguments but

concluded that “the Sentencing Guidelines have spoken adequately and

appropriately to the range of punishment that is available and should be utilized

by the Court in this instance.” The court also noted that Campos had lost his

permanent resident status and his opportunity to become a United States

citizen.

Campos contends on appeal that the sentence was unreasonable in light

of the Supreme Court’s decisions in Gall v. United States, 128 S. Ct. 586 (2007),

and Kimbrough v. United States, 128 S. Ct. 558 (2007). He asserts that our prior

jurisprudence restricted the district court’s sentencing discretion in a manner

incompatible with Gall and Kimbrough. He further argues that the

enhancement Guideline, § 2L1.2(b)(1)(A), is flawed and should not be given the

same weight as other Guidelines because it was not the product of empirical

studies or data or the usual process employed by the Sentencing Commission in

formulating Guidelines. Finally, he contends that the district court focused on

an irrelevant factor, namely, that he lost his permanent resident status and

opportunity to apply for citizenship.

When the district court imposes a sentence within a properly calculated

guidelines range and gives proper weight to the Guidelines and the 18 U.S.C.

§ 3553(a) factors, we “will give great deference to that sentence” and “will infer

that the judge has considered all the factors for a fair sentence set forth in the

Guidelines” in light of the sentencing considerations set out in § 3553(a). United

States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). A discretionary sentence

imposed within a properly calculated guidelines range is presumptively

reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also

Rita v. United States, 127 S. Ct. 2456, 2466-68 (2007) (holding that an appellate

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court may apply a presumption of reasonableness to a within-guidelines

sentence).

The district court must make an individualized assessment based on the

facts presented and must start by calculating the applicable guidelines range.

Gall, 128 S. Ct. at 596-97. This individualized assessment “necessarily means

that the sentencing court is free to conclude that the applicable [g]uidelines

range gives too much or too little weight to one or more factors, either as applied

in a particular case or as a matter of policy.” United States v. Williams, 517 F.3d

801, 809 (5th Cir. 2008). In Kimbrough, the Court reiterated what it had

conveyed in Rita; a sentencing court may vary from the Guidelines based solely

on policy considerations, including disagreements with the Guidelines, if the

court feels that the guidelines sentence fails properly to reflect § 3553(a)

considerations. Kimbrough, 128 S. Ct. at 570; see also Williams, 517 F.3d at 809-

10 & n.42 (discussing Kimbrough’s holding). Appellate review is highly

deferential as the sentencing judge is in a superior position to find facts and

judge their import under § 3553(a) with respect to a particular defendant. Gall,

128 S. Ct. at 597. An appeals court may not require “extraordinary

circumstances” to justify a sentence outside the guidelines range. Id. at 595.

With these considerations in mind, we turn to Campos’s arguments. A

threshold question is whether he preserved his arguments for review. Campos

argued that the 16-level enhancement under § 2L1.2 resulted in a sentence that

was excessive considering, inter alia, the nature of his prior offense, his youth

at the time of the prior offense, and his subsequent conduct. He did not,

however, argue that § 2L1.2 itself is flawed because it was not adopted as part

of the usual Sentencing Commission procedure. Further, nothing in the record

indicates that the district court was restricted by our precedent from considering

Campos’s arguments for a non-guidelines sentence. Campos likewise did not

object to the district court’s reference to his loss of ability to seek citizenship.

Thus, we review these arguments for plain error. See United States v.

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No. 07-20715

Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005). Campos must demonstrate (1)

error, (2) that is clear or obvious, and (3) that affects substantial rights. Id. If

these conditions are met, this court may exercise its discretion to correct the

error if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

We conclude that there is no reversible plain error. The record

demonstrates that the district court was aware of Campos’s arguments for a non-

guidelines sentence based on his particular circumstances. The court

nevertheless concluded that the Guidelines provided the appropriate sentencing

range. Further, our precedent did not preclude the district court from deviating

from the guidelines range based on a conclusion that the 16-level enhancement

resulted in an excessive sentence in light of Campos’s arguments. See United

States v. Gomez-Herrera, 523 F.3d 554, 557 n.1 (5th Cir. 2008). As for the

district court’s reference to Campos’s loss of permanent resident status and loss

of opportunity to seek citizenship, we see no plain error warranting reversal.

The district court’s decision to sentence Campos according to the

Guidelines is entitled to deference and the resulting within-guidelines sentence

is entitled to a presumption of reasonableness. See Alonzo, 435 F.3d at 554.

Campos has failed to overcome that presumption. To the extent that Campos

argues generally that the sentence is unreasonable based on the factors that he

did present to the district court, we discern no reason to disturb the district

court’s exercise of its discretion. See id.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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