United States v. Raul Pena-Garavito

Case: 14-50514 Document: 00512955232 Page: 1 Date Filed: 03/03/2015

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

No. 14-50514 FILED
Summary Calendar March 3, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RAUL RAYMUNDO PENA-GARAVITO,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-837-1

Before SMITH, BARKSDALE, and PRADO, Circuit Judges:
PER CURIAM: *
Raul Raymundo Pena-Garavito was sentenced to, inter alia, 151-months
imprisonment, following his jury-conviction for possession of, with intent to
distribute, cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(a). Pena
challenges only the substantive reasonableness of his sentence, maintaining it
is greater than necessary to fulfill the sentencing objectives of 18 U.S.C.
§ 3553(a).

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-50514 Document: 00512955232 Page: 2 Date Filed: 03/03/2015

No. 14-50514

As Pena concedes, our review is only for plain error because he failed to
challenge the reasonableness of his sentence in district court. E.g., Puckett v.
United States, 556 U.S. 129, 135 (2009); United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). Admitting the standard of review is a settled question
of law in our court, but to preserve the challenge for possible further review,
Pena contends the correct standard of review is for abuse of discretion. See,
e.g., United States v. Autery, 555 F.3d 864, 868-71 (9th Cir. 2009); United States
v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005).
Under plain-error review, Pena must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett, 556 U.S. at 135. If
he does so, we have the discretion to correct the error, but should do so only if
it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id. He fails to show a clear or obvious error.
Relying on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), and
to preserve the issue for possible further review, Pena asserts the presumption
of reasonableness afforded within-Sentencing Guidelines range sentences
should not apply because Guidelines §§ 2D1.1 and 2L1.2 lack an empirical
basis. As Pena concedes, his argument is foreclosed. E.g., United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
Pena also asserts his sentence is unreasonable because it fails to account
for his personal circumstances: his age and lack of criminal history; the low
recidivism rate associated with persons of his age and lack of criminal record;
his employment history; his education; and the absence of drug use. He has
not demonstrated, however, that his sentence fails to account for a sentencing
factor that should receive significant weight, gives significant weight to an
irrelevant or improper factor, or represents a clear error of judgment in

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No. 14-50514

balancing sentencing factors. E.g., United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009). Mere disagreement with the propriety of his sentence or with
the weight given to the 18 U.S.C. § 3553(a) sentencing factors does not suffice
to rebut the presumption of reasonableness that attaches to a within-
Guidelines sentence. E.g., United States v. Ruiz, 621 F.3d 390, 398 (5th Cir.
2010) (citation omitted); see also United States v. Gonzalez, 250 F.3d 923, 930
(5th Cir. 2001) (citation omitted) (implicit consideration of the § 3553(a) factors
is sufficient).
AFFIRMED.

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