Case: 10-40413 Document: 00511561763 Page: 1 Date Filed: 08/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 4, 2011
No. 10-40413
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL CAVAZOS-REYES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-1751-7
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Daniel Cavazos-Reyes appeals the 20-year sentence he received as a result
of his guilty plea conviction for hostage taking. He acknowledges that the
sentence constitutes a downward departure pursuant to U.S.S.G. § 5K1.1 from
the original guidelines range of life in prison. He maintains, however, that the
district court should have imposed a lesser sentence because the court failed to
give sufficient weight to the fact that he and his family faced threats as a result
of his testimony against members of a violent drug cartel. Cavazos-Reyes
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-40413 Document: 00511561763 Page: 2 Date Filed: 08/04/2011
No. 10-40413
contends that his 20-year sentence is thus unreasonable under the factors set
forth in § 5K1.1 and 18 U.S.C. § 3553(a).
This court typically reviews a sentence for reasonableness, under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006). However, because
Cavazos-Reyes did not object to the substantive reasonableness of his sentence
in the district court, we review for plain error only. See United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007). To show plain error, Cavazos-Reyes must
present a forfeited error that is clear or obvious and that affects his substantive
rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes such
a showing, this court has the discretion to correct the error but will do so only if
the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
In essence, Cavazos-Reyes is asserting that the district court should have
given greater weight to the danger and risks he and his family face as a result
of his testimony against codefendants. He maintains that if the district court
had provided adequate weight to this factor, it would have departed further to
the 10-year sentence requested by defense counsel. The district court was in a
superior position to find facts and assess their import, and the district court’s
determination of the appropriate sentence is entitled to deference. See United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). “The fact that
the appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.” Gall,
552 U.S. at 51. Because Cavazos-Reyes has failed to show a clear or obvious
error arising from the court’s imposition of sentence, the judgment of the district
court is AFFIRMED. See Puckett, 129 S. Ct. at 1429.
2