United States v. Roberto Perez-Sanchez

Case: 13-20595 Document: 00512744034 Page: 1 Date Filed: 08/25/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals

No. 13-20595
Fifth Circuit

FILED
Summary Calendar August 25, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

ROBERTO PEREZ-SANCHEZ, also known as Roberto Perez, also known as
Roberto Perez Sanchez,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-217-1

Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
Roberto Perez-Sanchez appeals his 70-month sentence following his
guilty plea to illegal reentry following deportation after an aggravated felony.
He argues that the district court committed procedural error in failing to
address his entitlement to a downward departure to account for time spent in

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20595 Document: 00512744034 Page: 2 Date Filed: 08/25/2014

No. 13-20595

state custody. See United States v. Barrera-Saucedo, 385 F.3d 533, 536-37 (5th
Cir. 2004).
The Government argues that Perez’s claim that his sentence was
procedurally unreasonable is not reviewable since he invited any error and/or
waived any error by failing to move for either a downward departure to account
for his time spent in state custody and by specifically requesting the minimum
sentence under the applicable Guidelines. We do not decide the issue because,
even if Perez’s argument is forfeited rather than waived, it fails under the
otherwise applicable plain error standard. To establish plain error, Perez must
show a forfeited error that is clear or obvious and that affected his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
We engage in a bifurcated analysis of the sentence, examining first
whether the district court committed any “significant” procedural errors and
then considering the substantive reasonableness of the sentence. Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Gutierrez-Hernandez,
581 F.3d 251, 254 (5th Cir. 2009). A district court commits significant
procedural error if it fails to provide an adequate explanation for the sentence
it imposes. Gall, 552 U.S. at 51. Sentences within the Guidelines require
“little explanation.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
However, when a district court is presented with a nonfrivolous argument for
a sentence outside the guidelines, “more than a brief statement may be
required.” United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
Nonetheless, a district court’s explanation is sufficient where the record
reflects that the district court listened to and considered the defendant’s
arguments for a below-Guidelines sentence and then indicated that a sentence
within the Guidelines range was appropriate. See id. at 525-26.

2
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No. 13-20595

Here, the record, when taken as a whole, reflects that the district court
implicitly considered whether Perez should receive a downward departure for
time spent in state custody but rejected such a departure when it found that a
sentence within the guidelines range was sufficient but not greater than
necessary to achieve the sentencing objectives of 18 U.S.C. § 3553(a). See
Rodriguez, 523 F.3d at 525. The court’s failure to provide additional reasons
does not constitute clear and obvious error. See Puckett, 556 U.S. at 135.
To the extent that Perez seeks to challenge the denial of a downward
departure to account for the time spent in state custody, we are without
jurisdiction to consider Perez’s argument, as there is no indication in the record
that the district court was under the mistaken impression that it could not
depart. See Barrera-Saucedo, 385 F.3d at 535. We retain jurisdiction to review
“whether the district court’s imposition of a guideline sentence instead of a
non-guideline sentence was reasonable.” United States v. Nikonova, 480 F.3d
371, 375 (5th Cir. 2007), abrogation on other grounds recognized by United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). Thus, to the
extent that Perez’s argument that the district court should have granted a
downward departure can be construed as a challenge to the substantive
reasonableness of his 70-month guidelines sentence, any such argument is
without merit. Because Perez was sentenced at the bottom of the guidelines
range, the sentence is presumptively reasonable. See United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006). Nor has Perez rebutted the presumption of
reasonableness that attaches to his within-guidelines sentence. See United
States v. Gomez-Herrera, 523 F.3d 554 565-66 (5th Cir. 2008). The judgment
of the district court is affirmed.
AFFIRMED.