Case: 12-40957 Document: 00512380429 Page: 1 Date Filed: 09/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 20, 2013
No. 12-40957
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JESUS MONTALVO-RODRIGUEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-609-1
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
Proceeding in forma pauperis and represented by appointed counsel, Jesus
Montalvo-Rodriguez challenges only the substantive reasonableness of his 70-
month sentence, imposed on remand for re-sentencing. As discussed infra, he
failed to raise this issue in district court.
After pleading guilty to having been found unlawfully present in the
United States following a prior deportation, in violation of 8 U.S.C. § 1326,
Montalvo received a sentence, inter alia, of 46 months imprisonment. Our court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40957
vacated that sentence and remanded for re-sentencing because Montalvo had
been denied his right to allocution.
On remand, a new presentence investigation report (PSR) was prepared
in the light of Montalvo’s August 2011 state-court conviction for possession of
between 50 and 2,000 pounds of marijuana. That conviction and a prior illegal-
entry conviction the probation officer overlooked in preparing the initial PSR
increased Montalvo’s advisory Guidelines sentencing range to 70 to 87 months.
Montalvo was sentenced, inter alia, to 70 months of imprisonment, the low end
of the advisory range. He challenges the substantive reasonableness of his
within-Guidelines sentence.
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, for issues preserved in the district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Montalvo does not claim
procedural error; he maintains only that his sentence is not reasonable.
As noted, Montalvo did not object in district court to the reasonableness
of his sentence. When defendant fails to so object, review is only for plain error.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). (Montalvo
challenges use of plain-error review for not objecting in district court to the
reasonableness of his sentence. He concedes this issue is foreclosed and presents
it only to preserve it for possible future review.)
Under the plain-error standard, Montalvo must show a clear or obvious
forfeited error that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). Even if he shows such reversible plain error, we have
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No. 12-40957
the discretion to correct the error, but should do so only if it seriously affects the
fairness, integrity, or public reputation of the proceedings. See id. His challenge
fails.
In considering reasonableness, “[a] discretionary sentence imposed within
a properly calculated guidelines range is presumptively reasonable”. United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). (Montalvo
acknowledges our court’s application of the presumption of reasonableness to a
within-Guidelines sentence; but, to preserve the issue for possible future review,
he challenges this presumption as applied to sentences under Guideline § 2L1.2
(unlawfully entering or remaining in the United States).) A district court may
impose a lengthier sentence on remand if new events or conduct comes to light
in the interim. See United States v. Resendez-Mendez, 251 F.3d 514, 517-18 (5th
Cir. 2001).
The record reflects that the district court made an individualized
determination at re-sentencing that a 70-month sentence was appropriate in the
light of the facts presented. See Gall, 552 U.S. at 49-51. The court considered
information regarding Montalvo’s reasons for illegally reentering this country,
his subsequent state conviction for possession of between 50 and 2,000 pounds
of marijuana, his request for a downward variance, his postsentencing efforts at
self-improvement, and the 18 U.S.C. § 3553(a) sentencing factors. Montalvo’s
disagreement with the court’s weighing of the § 3553(a) factors and his
“disagreement with the propriety of the sentence imposed do[] not suffice to
rebut the presumption of reasonableness that attaches to a within-guidelines
sentence”. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
AFFIRMED.
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