Case: 12-20796 Document: 00512413632 Page: 1 Date Filed: 10/18/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 18, 2013
No. 12-20796
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
FRANKLIN CORDOBA-MOSQUERA, also known as Juan Carlos Argulo, also
known as Franklin Mosquera Cordoba, also known as Franklin A. Cordona, also
known as Nerixander Garcia Vasquez,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-274-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Franklin Cordoba-Mosquera (Cordoba) appeals the 70-month sentence of
imprisonment imposed following his guilty plea conviction of being illegally
present in the United States following removal after conviction of an aggravated
felony. The district court determined that Cordoba should be sentenced at the
bottom of the applicable guideline range of 77 to 96 months, and it adjusted the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20796
sentence of imprisonment to give Cordoba credit for the time he had been in
custody. Cordoba contends that the sentence is procedurally and substantively
unreasonable.
Our review of the reasonableness of sentences is bifurcated. See Gall v.
United States, 552 U.S. 38, 51 (2007). First, we ensure that the sentencing court
committed no significant procedural error, such as “failing to consider the [18
U.S.C.] § 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.” Id. If the sentencing decision is
procedurally sound, we then evaluate the substantive reasonableness of the
sentence under an abuse-of-discretion standard. Id.
As Cordoba concedes, he did not specifically object to his sentence, and he
acknowledges that under our precedents he is therefore required to demonstrate
plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.
2008); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Cordoba
notes that the circuits are divided as to whether a defendant must specifically
object to his sentence in order to avoid plain error, and he wishes to preserve this
issue for possible further review. Under the plain error standard, an appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the
appellant satisfies the first three elements of the plain error standard, this court
has the discretion to correct the error if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. See id.
Cordoba contends that the district court erred procedurally with respect
to its explanation of the sentence imposed, as it did not address his nonfrivolous
arguments for a lower sentence and did not specifically address the sentencing
factors of 18 U.S.C. § 3553(a). Because nothing in the record indicates the
district court would have imposed a different sentence had it provided additional
explanation, Cordoba has not shown that the district court’s error, if any,
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No. 12-20796
affected his substantial rights. See United States v. Mondragon-Santiago, 564
F.3d 357, 363-64 (5th Cir. 2009).
Challenging the substantive reasonableness of his sentence, Cordoba
asserts that the district court gave too much weight to his criminal history and
that it gave insufficient consideration to the adversities he faced during
childhood. He contends that the sentence imposed by the district court is
excessive because it resulted from the application of a 16-level enhancement
based on an aggravated assault conviction that was remote in time. Cordoba
notes that the sentence on his illegal reentry offense is much longer than the
sentence he served for his previous aggravated assault conviction. He preserves
for possible further review his contention that, because the illegal reentry
guideline is penologically flawed, a presumption of reasonableness should not
apply.
Cordoba’s arguments amount to a mere disagreement with the weight the
district court gave to the various sentencing factors and thus are insufficient to
warrant reversal. See Gall, 552 U.S. at 51. He has failed to show error, plain
or otherwise.
AFFIRMED.
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