United States v. Mondragon-Santiago

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 26, 2009

No. 07-41099 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE MONDRAGON-SANTIAGO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas, Laredo Division

Before KING, DENNIS, and ELROD, Circuit Judges.*

JENNIFER W. ELROD, Circuit Judge:

Jose Mondragon-Santiago appeals his sentence for attempted unlawful

reentry into the United States following deportation, in violation of 8 U.S.C.

§ 1326. The district court sentenced him to fifty months of imprisonment and

three years of supervised release, which is within the range established by the

U.S. Sentencing Commission Guidelines Manual (U.S.S.G. or Guidelines). We

affirm Mondragon-Santiago’s sentence and reform the district court’s judgment

to reflect the correct statutory subsection.

*

Carolyn Dineen King, Circuit Judge, concurs in the judgment only.

No. 07-41099

I. BACKGROUND

Mondragon-Santiago is a Mexican citizen who was arrested while

attempting to enter the United States without permission on October 8, 2006

following removal from the United States a year earlier. He pled guilty to the

indictment, which charged him with attempted unlawful reentry in violation of

8 U.S.C. § 1326 and 6 U.S.C. §§ 202 and 557. In the presentence report (PSR),

the probation officer assessed a sixteen-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), predicated upon Mondragon-Santiago’s offense of aggravated

assault with a deadly weapon committed in Dallas, Texas, on August 24, 2002.

The state court ordered four years of deferred adjudication probation.1 The PSR

calculated Mondragon-Santiago’s sentencing range—based in part on the

enhancement—to be forty-six to fifty-seven months.

Mondragon-Santiago objected to the PSR on two grounds, only one of

which is relevant to this appeal. Mondragon-Santiago requested a downward

departure under U.S.S.G. § 4A1.3(b), claiming the Guidelines over-represented

his criminal history. The PSR assessed two points for his aggravated assault

offense, and an additional two points because he was on community supervision

when he committed the present crime. Thus, the same criminal act contributed

four points to his criminal history status in addition to adding sixteen levels to

his base offense level. While conceding that these calculations were correct

under the Guidelines, Mondragon-Santiago claimed they exaggerated his

propensity to commit crimes.

At sentencing, Mondragon-Santiago’s counsel requested the downward

departure described in the written objections, and also asked for a downward

departure based on the factors of 18 U.S.C. § 3553(a). Specifically, counsel

argued that Mondragon-Santiago does not have a history of “prior

1

Mondragon-Santiago failed to report, and a warrant for his arrest was issued in

Dallas County on November 1, 2005. He was deported to Mexico in September 2005.

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No. 07-41099

apprehensions.” He also noted that the defendant’s wife and two children live

in Dallas, that he faces a four-year sentence for his aggravated assault

conviction, and that he had a history of working. The longest time Mondragon-

Santiago had spent in jail before this offense was ninety days (for driving while

intoxicated).

The district court heard these arguments, engaged in a brief colloquy with

defense counsel regarding Mondragon-Santiago’s failure to observe the

conditions of his probation, and then allowed the defendant to speak for himself.

After hearing Mondragon-Santiago state that he needed to be with his family,

the district court asked him how he would accomplish that goal without entering

the United States illegally. Mondragon-Sandiago responded that he would not

be able to see his family if the government would not let him enter the country.

The district court suggested that maybe his family could visit him, and then

imposed a sentence of fifty months of imprisonment followed by three years of

supervised release. Mondragon-Santiago’s attorney objected on the grounds that

the sentence was “greater than necessary.” The district court overruled the

objection. Mondragon-Santiago appealed.

II. STANDARDS OF REVIEW

On appeal, Mondragon-Santiago raises three arguments in favor of

resentencing. First, he argues the district court committed a procedural error

by failing to adequately explain his sentence. Second, he argues that his

sentence is substantively unreasonable because the district court, at sentencing,

did not have the benefit 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), which he claims alter sentencing law in fundamental ways. Mondragon-

Santiago then argues, also under the rubric of substantive unreasonableness,

that appellate courts should discard the presumption of reasonableness applied

to within-Guidelines sentences when empirical studies do not undergird the

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Guidelines at issue. Finally, Mondragon-Santiago argues he was convicted and

sentenced under the wrong statutory subsection.

Following the Supreme Court’s decision in Booker v. United States, 543

U.S. 220 (2005), in which the Court rendered the Guidelines advisory only,

appellate courts review sentences for reasonableness under an abuse-of-

discretion standard. Gall, 128 S. Ct. at 594. This review occurs in two stages.

First, the court must ensure that the district court did not err procedurally by,

for example, miscalculating or failing to calculate the sentencing range under

the Guidelines, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range. United States v. Cisneros-Gutierrez, 517

F.3d 751, 764 (5th Cir. 2008) (citing Gall, 128 S. Ct. at 597). If the sentence is

procedurally proper, the court engages in a substantive review based on the

totality of the circumstances. Id. at 767; Gall, 128 S. Ct. at 597. In this circuit,

a sentence within the Guidelines range is presumed reasonable on appeal.

United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).

“The district court must make an individualized assessment based on the

facts presented,” and may deviate from the Guidelines based on policy

considerations or because the Guidelines fail to reflect the § 3553(a) factors. Id.

at 339. The district court should consider the factors in § 3553(a) in light of the

parties’ arguments, and may not presume the Guidelines range is reasonable.

Gall, 128 S. Ct. at 596–97. The district court must adequately explain the

sentence “to allow for meaningful appellate review and to promote the perception

of fair sentencing.” Id. at 597. “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.” Campos-Maldonado,

531 F.3d at 339.

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No. 07-41099

The parties dispute whether Mondragon-Santiago preserved error on the

procedural reasonableness of his sentence—that is, his claim that the district

court failed to properly explain the sentence. The government argues that the

defendant’s oral objection to the sentence as greater than necessary did not raise

any issue with the district court’s explanation of the sentence. Mondragon-

Santiago counters that his objection preserved review for reasonableness,

including both its procedural and substantive components. We agree with the

government that Mondragon-Santiago’s objection failed to preserve his

procedural claim of error.

“A party must raise a claim of error with the district court in such a

manner so that the district court may correct itself and thus, obviate the need

for our review.” United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994)

(quoting United States v. Bullard, 13 F.3d 154, 156 (5th Cir. 1994)). Mondragon-

Santiago’s objection sufficed to alert the district court of his disagreement with

the substance of the sentence, but not with the manner in which it was

explained. He could have asked the district court for further explanation during

the sentencing hearing, but did not. A district court hearing an objection that

a sentence is “greater than necessary” would not know from those words that the

defendant wanted further explanation of the sentence. We recently stated as

much: “When a defendant fails to raise a procedural objection below, appellate

review is for plain error only.” United States v. Lopez-Velasquez, 526 F.3d 804,

806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008); see also United States v. Peltier,

505 F.3d 389, 391–94 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008)

(applying plain error standard to claims of substantive and procedural

unreasonableness when defendant failed to object to his sentence).2 In Lopez-

2

We note a circuit split on the issue of whether a defendant must object at sentencing

to preserve error on appeal. See United States v. Sevilla, 541 F.3d 226, 231 & n.3 (3d Cir.

2008) (holding that a defendant need not object if he raised meritorious issues under 18 U.S.C.

5

No. 07-41099

Velasquez, the defendant objected to the sentence on various grounds, but not for

any procedural reason. 526 F.3d at 805–06. We reviewed his claim of

procedural unreasonableness—that the district court did not properly explain

the sentence, an argument raised for the first time on appeal—for plain error,

and his substantive claims under the usual, abuse-of-discretion standard. Id. at

806–07. We follow the same course here.

We remedy forfeited error only when it is plain and affects the defendant’s

substantial rights. United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).

Even when these elements are met, we have discretion to correct the forfeited

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

judicial proceedings.” Id. (internal quotation marks omitted). Mondragon-

Santiago concedes that his issue claiming that he was convicted and sentenced

under the wrong statutory subsection should be reviewed for plain error.

III. DISCUSSION

A. Procedural Reasonableness

Mondragon-Santiago argues that his sentence is procedurally

unreasonable because the district court did not adequately explain it. Congress

requires the sentencing court to state “the reasons for its imposition of the

particular sentence.” 18 U.S.C. § 3553(c). While sentences within the

Guidelines require “little explanation,” Mares, 402 F.3d at 519; see also Rita v.

United States, 127 S. Ct. 2456, 2468 (2007), more is required if the parties

present legitimate reasons to depart from the Guidelines: “Where the defendant

or prosecutor presents nonfrivolous reasons for imposing a different sentence . . .

the judge will normally go further and explain why he has rejected those

arguments.” Rita, 127 S. Ct. at 2468. The district court’s explanation “allow[s]

§ 3553(a), and listing cases from other circuits). Peltier has settled this issue in our circuit,

however, holding that defendants must object at sentencing to avoid plain error review. 505

F.3d at 391–92.

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for meaningful appellate review and . . . promote[s] the perception of fair

sentencing.” Gall, 128 S. Ct. at 597.

Mondragon-Santiago claims that he presented arguments to the district

court under § 3553(a) to justify a downward departure, but the court ignored

them. The government responds that the district court considered the

defendant’s arguments and rejected them, noting the nature of his previous

conviction for aggravated assault with a deadly weapon, and recognizing the

defendant’s family situation. The district court listened to the arguments and

asked questions of defense counsel and the defendant, but the court did not

directly address the arguments before reciting the Guidelines calculation and

range and choosing a sentence within that range. In fact, the district court did

not mention any § 3553(a) factors at all.

A survey of recent cases on this topic illustrates the inadequacy of the

district court’s explanation. In Rita, the district court acknowledged that the

defendant was requesting a downward departure under § 3553(a) and

summarized the defendant’s arguments. 127 S. Ct. at 2461. After hearing the

government’s response, the court “concluded that he was ‘unable to find that the

[report’s recommended] sentencing guideline range . . . is an inappropriate

guideline range for that, and under 3553 . . . the public needs to be protected if

it is true, and I must accept as true the jury verdict.’” Id. at 2462 (alterations in

original). The Supreme Court determined that “the sentencing judge’s

statement of reasons was brief but legally sufficient.” Id. at 2469.

In United States v. Rodriguez, 523 F.3d 519 (5th Cir.), cert. denied, 129

S. Ct. 624 (2008), the district court overruled the defendant’s written objections

to the PSR for the reasons given in the addendum. 523 F.3d at 522. The court

then listened to the defendant’s arguments for a sentence at the low end of the

Guidelines range, but rejected them and sentenced him at the high end of the

range. Id. at 522–23. The district court believed that sentence “adequately

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No. 07-41099

addressed the objectives of punishment and deterrence.” Id. at 523. On appeal,

this court affirmed, noting that the district court had seen the defendant’s

arguments in the objections to the PSR and had expressly adopted the PSR’s

findings and reasoning. Id. at 525. This court found the district court’s reasons

adequate in light of Rita. Id. at 525–26.

In United States v. Gomez-Herrera, 523 F.3d 554 (5th Cir.), cert. denied,

129 S. Ct. 624 (2008), this court affirmed the defendant’s sentence when the

district court rejected his arguments for a downward departure. The defendant

had filed a sentencing memorandum in which he analyzed the various § 3553(a)

factors and requested a below-Guidelines sentence. 523 F.3d at 556. He made

the same arguments at the sentencing hearing, and the district court noted them

but “was persuaded on the basis of the arguments made both here today and in

the sentencing memorandum that [the court] should not depart downward from

the Guideline range.” Id. at 557. In affirming, this court found the district court

had considered the defendant’s arguments and adequately addressed them. Id.

at 565.

In United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008), cert. denied, 129

S. Ct. 904 (2009), the defendant objected to the PSR, but the district court

overruled the objections. On appeal, this court opined: “Error does not

necessarily result when the district court’s reasons, as in this case, are not

clearly listed for review.” 524 F.3d at 657. The district court stated that it had

“considered the arguments made earlier . . . as well as the information in the

report,” and also that it kept “in mind the factors that the court has to consider

in imposing a sentence.” Id. Based on these statements, this court analyzed the

record to determine if the arguments and report stated sufficient reasons to

uphold the sentence. Id. at 658. The court found such support, but strongly

recommended that the district court explicitly state its reasons on the record.

Id. (“A clear statement of reasons on the record also serves to prevent the

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inefficiency that would result from remand and resentencing if on appeal we had

been unable to determine the court’s reasons from the record.”).3

In Rita, Rodriguez, and Gomez-Herrera, the sentencing court

acknowledged that § 3553(a) arguments had been made and devoted a few words

to rejecting them. In Bonilla, the sentencing court referred to arguments

previously made and to the report, thereby incorporating that reasoning into her

decision, in which she explicitly noted her consideration of the sentencing

factors. Unlike in these cases, the district court in this case did not give any

reasons for its sentence beyond a bare recitation of the Guideline’s calculation.

This despite the fact that Mondragon-Santiago raised arguments before the

district court concerning his family, his work history, and his prior convictions,

all of which are relevant considerations under § 3553(a). See § 3553(a)(1)

(including as a sentencing factor “the nature and circumstances of the offense

and the history and characteristics of the defendant”).4 The district court did not

mention Mondragon-Santiago’s arguments, and the court’s statement of reasons

3

Other circuits have vacated defendants’ sentences because the district courts failed

to explain them sufficiently. In United States v. Peters, 512 F.3d 787 (6th Cir. 2008), the

defendant made various arguments under § 3553(a) in favor of leniency, but the district court

acknowledged them only in a “cursory statement.” 512 F.3d at 788. The Sixth Circuit found

this explanation inadequate under Rita. Id. at 788–89; see also United States v. Thomas, 498

F.3d 336, 340–41 (6th Cir. 2007). In United States v. Miranda, 505 F.3d 785 (7th Cir. 2007),

the district court’s sentence was pre-Rita, but the Seventh Circuit vacated and remanded

because the district court explained the sentence using only general “truisms” already built

into the Guidelines. 505 F.3d at 796. The Seventh Circuit found these explanations

insufficient because they did not individually pertain to the defendant and his arguments

about his specific condition. Id. The sentences imposed in these cases appear to have been

within the Guidelines range, but none was decided under the plain error standard.

4

See also Rita, 127 S. Ct. at 2473 (Stevens, J., concurring) (“Matters such as age,

education, mental or emotional condition, medical condition (including drug or alcohol

addiction), employment history, lack of guidance as a youth, family ties, or military, civic,

charitable, or public service are not ordinarily considered under the Guidelines. These are,

however, matters that § 3553(a) authorizes the sentencing judge to consider.” (citation and

footnote omitted)).

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did not further illuminate its reasoning.5 The total explanation of the court was

as follows: “This is an Offense Level 21, Criminal History Category 3 case with

guideline provisions of . . . 46 to 57 months. The defendant is committed to the

Bureau of Prisons for a term of 50 months. He will be on supervised release for

a term of three years . . . .” The district court then overruled without

explanation Mondragon-Santiago’s objection that the sentence was “greater than

necessary.” We conclude that the district court failed to adequately explain its

reasons for the sentence imposed as required by § 3553(c), which is error under

Rita.

Because Mondragon-Santiago did not preserve this error, we must next

decide if this error merits vacating his sentence under the plain error standard.

As noted, the first element of the test is met: there is error. It is also plain, or

obvious; the law requiring courts to explain sentences is clear. See Mares, 402

F.3d at 521 (“It is enough that the law was settled at the time of appellate

consideration to make the error plain.”) (internal quotation marks omitted). The

parties dispute whether the error affected Mondragon-Santiago’s substantial

rights.

To show that an error affects a defendant’s substantial rights, the

defendant must show that it affected the outcome in the district court: “To meet

this standard the proponent of the error must demonstrate a probability

‘sufficient to undermine confidence in the outcome.’” Id. (quoting United States

v. Dominguez Benitez, 542 U.S. 74, 83 (2004)); see also United States v. Olano,

507 U.S. 725, 734–35 (1993). We are aware that other circuits have relaxed this

5

As noted above, the district court did engage in a brief colloquy with defense counsel

and also asked questions of the defendant regarding his family and plans to see them, but

these exchanges did not squarely address Mondragon-Santiago’s sentencing arguments.

10

No. 07-41099

requirement in the sentencing context,6 but this circuit has not followed suit. To

the contrary, we have applied our traditional standards when reviewing

sentences, emphasizing that “the defendant’s burden of establishing prejudice

‘should not be too easy.’” Mares, 402 F.3d at 521 (quoting Dominguez Benitez,

542 U.S. at 82). In Mares, this court found Booker error when the district court

found facts used to enhance the sentence that went beyond the facts admitted

by the defendant or found by a jury. Id. The court approvingly cited the

Eleventh Circuit’s summary of Supreme Court precedent, stating the burden of

proof requires

the defendant to show that the error actually did make a difference:

if it is equally plausible that the error worked in favor of the

defense, the defendant loses; if the effect of the error is uncertain so

that we do not know which, if either, side it helped the defendant

loses.

Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005)).

Using this approach, the court found the Booker error did not affect the

defendant’s substantial rights. Id. at 522. We are compelled to follow Mares: to

show substantial prejudice, the defendant must prove that the error affected the

sentencing outcome.

As always, we being our search for error with the presumption that none

occurred. We afford great deference to sentences within the Guidelines range,

and we “infer that the judge has considered all the factors for a fair sentence set

6

See In re Sealed Cases, 527 F.3d 188, 193 (D.C. Cir. 2008) (“And the required showing

of prejudice should be slightly less exacting for sentencing that it is in the context of trial

errors.” (internal quotation marks and citation omitted)); United States v. Lewis, 424 F.3d 239,

248 (2d Cir. 2005) (“[I]n the sentencing context there are circumstances that permit us to relax

the otherwise rigorous standards of plain error review to correct sentencing errors.” (internal

quotation marks and citation omitted)). But see United States v. Mendoza, 543 F.3d 1186,

1194 (10th Cir. 2008) (“If a party considers the district court’s § 3553(c)(2) statement of

reasons insufficient, it must either timely object during the sentencing hearing or satisfy plain

error review by explaining how the outcome might have been different had the district court

provided a procedurally adequate verbal explanation for its choice of sentence.”).

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forth in the Guidelines in light of the sentencing considerations set out in

§ 3553(a).” Campos-Maldonado, 531 F.3d at 338 (quotation marks omitted).

While a district court errs by failing to explain a sentence, the effect of that error

on our review for reasonableness is diminished when the sentence is within the

Guidelines range. Mondragon-Santiago argues that the district court’s error

affected his substantial rights because it makes meaningful appellate review

impossible. We note that at least two of our sister circuits have adopted this

argument when reviewing sentences outside of the Guidelines range. See In re

Sealed Cases, 527 F.3d at 193; Lewis, 424 F.3d at 247. Nonetheless, our circuit

precedents foreclose this argument so far as within-Guidelines sentences are

concerned. See United States v. Izaguirre-Losoya, 219 F.3d 437, 441–42 (5th Cir.

2000) (“The district court’s failure to articulate precise reasons for imposing the

sentence did not impair the defendant’s substantial rights.”); see also Campos-

Maldonado, 531 F.3d at 338–39. Mondragon-Santiago’s sentence is within the

Guidelines, and he fails to show that an explanation would have changed his

sentence. Accordingly, we are bound by our precedent to hold that the district

court’s failure to adequately explain the sentence did not affect his substantial

rights. Thus, we find no reversible plain error.

B. Substantive Reasonableness

Mondragon-Santiago argues that Gall and Kimbrough dramatically

altered the sentencing landscape, and asks this court to summarily remand for

reconsideration in light of these cases, which were decided shortly after the

district court imposed the sentence in this case. He also argues that certain

Guidelines, including the one applied here, are not entitled to the normal

appellate presumption in favor of Guidelines sentences because these provisions

are not based on empirical studies.

Gall and Kimbrough clarified sentencing law after Booker by allowing

district courts to depart from the Guidelines based on disagreements with the

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No. 07-41099

Guidelines’s policy considerations (Kimbrough), and also when circumstances

warrant such a move even though the circumstances are not extraordinary

(Gall). See United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008) (“The

Supreme Court reiterated in Kimbrough what it had conveyed in Rita v. United

States, which is that as a general matter, courts may vary [from Guidelines

ranges] based solely on policy considerations, including disagreements with the

Guidelines.”) (internal footnote and quotation marks omitted); Campos-

Maldonado, 531 F.3d at 339 (“An appeals court may not require ‘extraordinary

circumstances’ to justify a sentence outside the guidelines range.” (quoting Gall,

128 S. Ct. at 595)).

Mondragon-Santiago argues that these holdings significantly alter prior

law, and cites several of our pre-Gall and Kimbrough cases. Indeed, before Gall

and Kimbrough, we held that “a factor already accounted for in the advisory

Guideline range is an improper factor to consider for a non-Guideline sentence,”

United States v. Sanchez-Ramirez, 497 F.3d 531, 535 (5th Cir. 2007), and that

“Booker does not give sentencing courts the discretion to impose a non-Guideline

sentence based on the courts’ disagreement with Congressional and Sentencing

Commission policy,” United States v. Tzep-Mejia, 461 F.3d 522, 527 (5th Cir.

2006). See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 387–88 & n.10

(5th Cir. 2008). With some justification, see id., he claims that the district court

was not free to accept his argument that the Guidelines double-counted his prior

felony conviction because the court was not free to depart from the Guidelines

for policy reasons.

Mondragon-Santiago, however, fails to show how this influenced his case.

The district court did not indicate that it wished to depart from the Guidelines

for policy reasons (or for any other reason), but could not because of this court’s

precedent. See id. at 388–89 (refusing to find error in light of Gall when “there

is absolutely nothing to indicate that any such state of affairs influenced the

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sentence imposed in this case”); Campos-Maldonado, 531 F.3d at 339 (“Further,

nothing in the record indicates that the district court was restricted by our

precedent from considering [the defendant’s] arguments for a non-guidelines

sentence.”). The fact that the district court chose a sentence in the middle of the

Guidelines range lends no support to Mondragon-Santiago’s suggestion that the

court desired to depart from the Guidelines. See Rodriguez-Rodriguez, 530 F.3d

at 388–89. Thus, on this record, we refuse to convert a hypothesis into evidence

of an abuse of discretion. Accordingly, Mondragon-Santiago is not entitled to

relief on that basis.

Mondragon-Santiago next argues the Guideline applied in this case,

U.S.S.G. § 2L1.2, is not empirically-based, and therefore should not be afforded

the appellate presumption of reasonableness. He points to the Supreme Court’s

discussion in Kimbrough regarding the calculation of sentences in drug cases

and the substantial disparity under the Guidelines for crimes involving crack

cocaine versus powdered cocaine. See 128 S. Ct. at 566–67. The Court described

the benefit of the Sentencing Commission’s work as follows: “It has the capacity

courts lack to ‘base its determinations on empirical data and national

experience, guided by a professional staff with appropriate expertise.’” Id. at

574. The Guideline applicable to crack cocaine offenses, however, was not based

on such data, and the Court concluded that a district court could reasonably

depart from it even in “mine-run” cases because they over-punished the offense.

Id. at 575.

We read Kimbrough to allow district courts, in their discretion, to consider

the policy decisions behind the Guidelines, including the presence or absence of

empirical data, as part of their § 3553(a) analyses. Kimbrough did not question

the appellate presumption, however, and its holding does not require discarding

the presumption for sentences based on non-empirically-grounded Guidelines.

E.g., Campos-Maldonado, 531 F.3d at 338–39 (applying the appellate

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presumption even though the defendant made the same argument from

Kimbrough regarding U.S.S.G. § 2L1.2’s lack of empirical moorings). Even if the

Guidelines are not empirically-grounded, the rationale of Rita undergirding the

presumption still holds true: by the time an appeals court reviews a Guidelines

sentence, both the Sentencing Commission and the district court have fulfilled

their congressional mandate to consider the § 3553(a) factors and have arrived

at the same conclusion. See Rita, 127 S. Ct. at 2463. The district court is better

situated to weigh the Guidelines’ policy considerations as applied to a particular

defendant, and our deference to the exercise of that discretion, backed up by the

Commission’s deliberations, is proper.

In appropriate cases, district courts certainly may disagree with the

Guidelines for policy reasons and may adjust a sentence accordingly. But if they

do not, we will not second-guess their decisions under a more lenient standard

simply because the particular Guideline is not empirically-based.7 As the

Supreme Court noted in Rita, the work of the Sentencing Commission is

ongoing, and the sentencing process will continue to evolve as sentencing courts

and the Commission refine the factors that determine a sentence’s

reasonableness. See id. at 2464. The Commission can then update the

Guidelines to incorporate these refinements, see 28 U.S.C. § 994(p); Rita, 127 S.

Ct. at 2464, as it has done so respecting the Guideline at issue in Kimbrough, see

U.S.S.G. app. C, amend. 706, at 226–31 (Supp. 2008) (regarding two-level

reduction, effective Nov. 1, 2007); app. C, amend. 713, at 253 (regarding

retroactivity, effective Mar. 3, 2008). Until the Commission so acts, however, we

will presume a sentence within the current version of the Guidelines to be

7

We have reached this conclusion in a number of unpublished decisions. E.g., United

States v. Reyes-Carranza, No. 08-50486, 2009 WL 348779 (5th Cir. Feb. 12, 2009); United

States v. Rosas-Benites, No. 08-50540, 2009 WL 270045 (5th Cir. Feb. 5, 2009); United States

v. De La Mora, No. 07-40933, 2009 WL 190703 (5th Cir. Jan. 28, 2009).

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reasonable, and the defendant must rebut that presumption to demonstrate

substantive unreasonableness. See United States v. Alonzo, 435 F.3d 551, 554

(5th Cir. 2006).

In sum, Mondragon-Santiago has not shown substantive

unreasonableness, and we will not disturb the district court’s sentence.

C. Reformation of Judgment

Finally, Mondragon-Santiago argues that he was convicted and sentenced

under the wrong statutory subsection because he does not have a prior

conviction for an aggravated felony. At oral argument, the government conceded

this point, and requested that we reform the judgment. Mondragon-Santiago

asks for resentencing in the first instance, and for reformation in the alternative.

Mondragon-Santiago was convicted under 8 U.S.C. § 1326(b)(2), which

penalizes reentry by an alien deported after prior conviction for an aggravated

felony with imprisonment of up to twenty years. Section 1326(b)(1) penalizes the

same conduct for aliens deported after conviction for certain misdemeanors or

for a felony (other than an aggravated felony), and limits imprisonment to a

maximum term of ten years. The term “aggravated felony” is defined in 8 U.S.C.

§ 1101(a)(43)(F) to mean “a crime of violence . . . for which the term of

imprisonment [is] at least one year.” 8 “Any reference to a term of imprisonment

or a sentence with respect to an offense is deemed to include the period of

8

18 U.S.C. § 16 defines “crime of violence”:

The term “crime of violence” means–

(a) an offense that has as an element the use, attempted use, or threatened

use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property of another

may be used in the course of committing the offense.

Mondragon-Santiago does not contest that his conviction for aggravated assault with a deadly

weapon is a crime of violence.

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No. 07-41099

incarceration or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that imprisonment or sentence in

whole or in part.” § 1101(a)(48)(B).

Mondragon-Santiago argues that he should have been convicted and

sentenced under § 1326(b)(1) because his prior conviction for aggravated assault

is not an “aggravated felony” under § 1101(a)(43)(F). The state court ordered

four years of deferred adjudication probation for his earlier crime. See Tex. Code

Crim. Proc. art. 42.12, § 5(a) (“[W]hen in the judge’s opinion the best interest of

society and the defendant will be served, the judge may, after receiving a plea

of guilty or plea of nolo contendere, hearing the evidence, and finding that it

substantiates the defendant’s guilt, defer further proceedings without entering

an adjudication of guilt, and place the defendant on community supervision.”).

Federal law counts Texas’s deferred adjudication probation as a

conviction.9 See 8 U.S.C. § 1101(a)(48)(A);10 see also United States v. Valdez-

Valdez, 143 F.3d 196, 203 (5th Cir. 1998) (holding that a Texas deferred

adjudication “may be counted as ‘conviction for a felony’ under [U.S.S.G.] §

2L1.2(b)(1)”). Mondragon-Santiago does not dispute that his conviction for

aggravated assault counts as a felony under § 1326(b). But he argues that he

9

Under Texas law, deferred adjudication probation is neither a conviction nor a

sentence. Hurley v. State, 130 S.W.3d 501, 506 (Tex. App.—Dallas 2004, no pet.); see also

Taylor v. State, 131 S.W.3d 497, 500, 502 (Tex. Crim. App. 2004). State law does not settle the

issue, however, because federal law controls the interpretation of § 1101. See United States

v. Vasquez-Balandran, 76 F.3d 648, 650 (5th Cir. 1996).

10

This statute provides:

The term “conviction” means, with respect to an alien, a formal judgment of

guilt of the alien entered by a court or, if adjudication of guilt has been

withheld, where–

(i) a judge or jury has found the alien guilty or the alien has entered a plea

of guilty or nolo contendere or has admitted sufficient facts to warrant a finding

of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on

the alien’s liberty to be imposed.

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No. 07-41099

was not sentenced to a term of imprisonment for at least one year, and thus he

did not commit an aggravated felony under § 1101(a)(43)(F). Mondragon-

Santiago concedes that this issue was not raised below. Thus, we review for

plain error.

Our precedent distinguishes between sentences of imprisonment that are

imposed but then suspended, and sentences that are for probation in the first

instance without any imprisonment contemplated. See United States v. Banda-

Zamora, 178 F.3d 728, 730 (5th Cir. 1999) (“Thus, when a court does not order

a period of incarceration and then suspend it, but instead imposes probation

directly, the conviction is not an ‘aggravated felony.’”). If the sentencing court

orders imprisonment and then suspends it, the sentence counts under

§ 1101(a)(43)(F) for determining if the term of imprisonment is at least one year

in duration. See, e.g., Vasquez-Balandran, 76 F.3d at 650–51. Conversely, if the

sentencing court orders probation directly, then that conviction does not count

as a term of imprisonment or as an aggravated felony. See, e.g., United States

v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997). The issue here is which

scheme deferred adjudication probation under Texas law more closely resembles.

The question turns on the meaning of the phrase “term of imprisonment.”

Under § 1101(a)(48)(B), the term refers to a “period of incarceration or

confinement ordered by a court of law.” This definition requires the sentencing

court in the first instance to order or impose imprisonment as part of the

sentence, regardless of a later suspension. Deferred adjudication probation in

Texas does not impose a sentence of imprisonment, and thus does not involve a

“term of imprisonment.” From this analysis we conclude that Mondragon-

Santiago’s four years of deferred adjudication probation under Texas law is not

a term of imprisonment under § 1101(a)(48)(B), and thus is not an aggravated

felony under § 1101(a)(43)(F).

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No. 07-41099

Given that the judgment erroneously lists § 1326(b)(2) as the statute under

which Mondragon-Santiago was convicted and sentenced, we must determine if

the error merits vacation of his sentence under the plain error standard. We

conclude that it does not. Even if we assume the error is plain, it did not affect

Mondragon-Santiago’s substantial rights. Again, he bears the burden to prove

the error affected the outcome in the district court. Yet, the record does not

indicate the district court’s sentence was influenced by an incorrect

understanding of the statutory maximum sentence. Cf. United States v. Watson,

476 F.3d 1020, 1023–24 (D.C. Cir. 2007) (vacating sentence under plain error

standard when district court recited incorrect statutory maximum and explicitly

based its sentence on that mistaken understanding). In addition, the sentence

imposed was both within a properly calculated Guidelines range and below the

statutory maximum of § 1326(b)(1), points Mondragon-Santiago concedes. Cf.

id. (noting that the district court did not calculate the Guidelines range at all).11

Mondragon-Santiago has not shown how, on this record, the error affected the

outcome in the district court.12 Cf. Izaguirre-Losoya, 219 F.3d at 439, 441–42

11

We are mindful that the Sentencing Commission added a new application note to

U.S.S.G. § 2L1.2 suggesting a downward departure may be warranted when, for example, the

defendant has a prior conviction that is a crime of violence but that does not fall within

§ 1101(a)(43)’s definition of “aggravated felony.” § 2L1.2 cmt. n.7. This application note

merely states explicitly what had been implicitly within the district court’s discretion: the

possibility of a downward departure based on considerations consistent with § 3553(a). There

is no evidence in this case that the district court was inclined to depart from the Guidelines

range, as evidenced by the choice of a sentence in the middle of the range, despite Mondragon-

Santiago’s presentation of this very argument. In view of this fact, we do not address the

constitutionality of 18 U.S.C. § 3742(g)(2), which limits the district court’s ability to sentence

the defendant outside of the Guidelines upon remand. Mondragon-Santiago suggests this

limitation is inconsistent with Booker. We likewise do not decide if Application Note 7 could

benefit Mondragon-Santiago if the case were remanded, in light of 18 U.S.C. §§ 3553(a)(4) and

3742(g)(1), which require the district court to use the version of the Guidelines in effect at the

original sentencing when calculating the Guidelines range.

12

We have reached this conclusion in several unpublished cases. United States v.

Rosales-Velasquez, No. 07-40143, 2009 WL 139628 (5th Cir. Jan. 21, 2009); United States v.

Campos, 277 F. App’x 505 (5th Cir. 2008); United States v. Alvarado-Delgado, 77 F. App’x 272

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No. 07-41099

(upholding the defendant’s sentence, under the plain error standard, when the

district court failed to explain why it chose to impose consecutive, rather than

concurrent, sentences). Thus, we find no plain error requiring vacation of

Mondragon-Santiago’s sentence, but we reform the district court’s judgment to

reflect the correct statutory subsection.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment, but

REFORM it to reflect conviction and sentencing under 8 U.S.C. § 1326(b)(1).

(5th Cir. 2003).

20