IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 29, 2008
No. 07-10151 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RAUL LOPEZ-VELASQUEZ, also known as Raul Camacho-Salazar
Defendant - Appellant
Consolidated with
No. 07-10321
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RAUL CAMACHO-SALAZAR, also known as Raul Lopez-Velasquez
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:06-CR-38-ALL
USDC No. 6:06-CR-45-ALL
Before JONES, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
Nos. 07-10151; 07-10321
PER CURIAM:
Raul Lopez-Velasquez (“Lopez”), also known as Raul Camacho-Salazar,
pled guilty to illegal re-entry after deportation and was sentenced to seventy-two
months in prison and three years of supervised release. This conviction
triggered the revocation of his supervised release on an earlier conviction for
illegal re-entry. In the separate revocation proceedings, Lopez was sentenced to
serve twenty months in prison, consecutive to his seventy-two-month sentence
for his most recent re-entry. Lopez filed an appeal in each case, now consoli-
dated before this court. We affirm.
BACKGROUND
Lopez is a citizen of Mexico. He was deported from the United States to
Mexico in 2004. In May 2006, Lopez was found by an immigration official in Big
Spring, Texas. He was indicted for illegal re-entry, and pled guilty. His offense
and criminal history resulted in an advisory Sentencing Guidelines range of
twenty-four to thirty months’ imprisonment. At the sentencing hearing, the
district court varied upward from the Guidelines range and sentenced Lopez to
seventy-two months in prison. The district court stated this was reasonable in
light of, inter alia, Lopez’s two prior drug convictions, his eleven separate arrests
by immigration officials, and his seven deportations prior to the case at hand.
The court concluded that Lopez “obviously has no respect for the law of the
United States, nor of the borders of the United States.” Lopez objected on
various grounds, and properly filed appeal number 07-10151 with this court.
Appeal number 07-10321 concerns a revocation of supervised release
stemming from an earlier re-entry conviction. In December 2002 Lopez pleaded
guilty to illegal re-entry in the U.S. District Court for the District of Arizona. He
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Nos. 07-10151; 07-10321
was sentenced to twenty-seven months in prison and three years supervised
release. After his release from prison, he was deported to Mexico. When Lopez
was picked up in Big Spring, Texas in 2006, he was still serving his term of
supervised release on the District of Arizona conviction. The District of Arizona
transferred his case to the Northern District of Texas, where his supervised
release was revoked due to his illegal re-entry. The advisory Guidelines range
for the revocation was eighteen to twenty-four months, and the district court
imposed a sentence of twenty months. Lopez appealed.
DISCUSSION
Lopez appeals his seventy-two-month sentence for illegal re-entry for a
number of reasons, most of which are foreclosed by circuit precedent. He offers
no separate argument concerning his twenty-month sentence on revocation.
I
Lopez asserts that his seventy-two-month sentence is substantively
unreasonable. We review sentences inside and outside the advisory Guidelines
range for reasonableness under the abuse of discretion standard of review. Gall
v. United States, 128 S. Ct. 586, 597 (2007). Lopez also asserts, for the first time
on appeal, that his sentence was procedurally defective because the district court
failed adequately to explain its reasons for the upward variance. When a
defendant fails to raise a procedural objection below, appellate review is for plain
error only. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). This
rule “serves a critical function by encouraging informed decisionmaking and
giving the district court an opportunity to correct errors before they are taken
up on appeal.” Id. at 392.
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Nos. 07-10151; 07-10321
Here, the district court carefully explained its reasons for imposing a
seventy-two-month sentence:
As to the term of incarceration, I have imposed a term of 72 months.
This is an upward variance from the advisory guideline range. I
believe this is a reasonable sentence based on the defendant’s
criminal history showing two drug convictions; furthermore
indicating that the defendant has been arrested by ICE agents on
eleven separate occasions; further indicating that the defendant has
been deported on seven prior occasions to this particular case.
I believe that this sentence is a reasonable sentence looking at those
factors listed in Title 18, United States Code, Section 3553(a),
particularly looking at the factor considering the need to promote
respect for the law. This defendant obviously has no respect for the
law of the United States, nor of the borders of the United States.
There’s a need to provide a reasonable punishment for this offense,
looking at the defendant’s criminal history; the need to afford
adequate deterrence to further criminal conduct of the defendant;
the need to protect the public from this defendant; and looking at
the nature and circumstances of this offense and the history and
characteristics of this defendant.
Based upon those factors, I believe that a sentence of 72 months is
a reasonable sentence in this case.
Lopez claims this sentence was substantively unreasonable for a number
of reasons. First, he contends it is “not extraordinary” for a defendant convicted
of illegal re-entry to have a history of previous entries. Gall, however, squarely
rejected the proposition that extraordinary circumstances are necessary to
justify a sentence outside the Guidelines range. 128 S. Ct. at 595. Moreover,
Lopez’s extensive history of re-entry following deportation adequately supports
the district court’s conclusion that he has “no respect” for the laws or borders of
the United States. Lopez’s argument on this point is without merit.
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Nos. 07-10151; 07-10321
Lopez also contends that his two prior drug convictions were fully
accounted for in calculating the Guidelines range and may not be further
considered as grounds for a variance under § 3553(a). This is incorrect. As this
court has explained, the Supreme Court’s decision in Booker “implicitly rejected
the position that no additional weight could be given to factors included in
calculating the applicable advisory Guidelines range, since to do otherwise would
essentially render the Guidelines mandatory.” United States v. Williams,
517 F.3d 801, 809 (5th Cir. 2008) (citing United States v. Booker, 543 U.S. 220
(2005)). Rather, “the sentencing court is free to conclude that the applicable
Guidelines range gives too much or too little weight to one or more factors,” and
may adjust the sentence accordingly under § 3553(a). Id. Lopez has shown no
error here.
Lopez’s other arguments include his claim that his upbringing in the
United States and his cultural assimilation are mitigating factors that make any
upward variance unreasonable. While cultural assimilation may be considered
as a mitigating factor, United States v. Rodriguez-Montelongo, 263 F.3d 429, 433
(5th Cir. 2001), there is no requirement that a sentencing court must accord it
dispositive weight. Here the district court stated that it had considered Lopez’s
history and characteristics in imposing its sentence. Lopez has shown no abuse
of discretion.
Nor was it an abuse of discretion for the district court to consider Lopez’s
eleven prior arrests by immigration officials under § 3553(a). It is well-
established that prior criminal conduct not resulting in a conviction may be
considered by the sentencing judge. United States v. Jones, 444 F.3d 430, 434
(5th Cir. 2006). It is true that prior arrests, standing alone, are insufficiently
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Nos. 07-10151; 07-10321
reliable to justify an upward departure pursuant to the Guidelines. Id. (citing
U.S.S.G. § 4A1.3(a)(3)). This court has not, however, held that prior arrests may
not be factored into a non-Guidelines sentence pursuant to § 3553(a). Moreover,
Lopez’s eleven prior arrests by immigration officials do not “stand alone” — here
they are corroborated by more than half a dozen deportations. These arrests are
sufficiently “supported by evidence” to constitute reliable grounds for a variance
in this case. See id. We find no error here.
On the whole Lopez has not shown his seventy-two-month sentence is
substantively unreasonable. Nor can Lopez show any procedural defect under
the plain error test. The district court did not, as Lopez claims, merely pay “lip
service” to the § 3553(a) factors. Rather, the district court thoroughly and
adequately articulated several § 3553(a) factors that justified the variance. See
Rita v. United States, 127 S. Ct. 2456, 2468 (2007); see also United States v.
Smith, 440 F.3d 704, 707 (5th Cir. 2006) (“[A] checklist recitation of the section
3553(a) factors is neither necessary nor sufficient for a sentence to be
reasonable.”). Lopez has shown no procedural error here, much less a plain one.
See Peltier, 505 F.3d at 392 (listing elements of the plain error test). The district
court’s seventy-two-month sentence was not an abuse of discretion.
Lopez’s other challenges to his seventy-two-month sentence are foreclosed
by binding circuit precedent. Lopez argues it was reversible error for the court
to sua sponte impose an upward variance without providing advance notice.
This argument is precluded by our holding in United States v. Mejia-Huerta:
“sentencing courts are not required to give pre-sentencing notice of their sua
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Nos. 07-10151; 07-10321
sponte intention to impose a non-Guidelines sentence.”1 Moreover, the court
below admonished Lopez prior to accepting his guilty plea that “If the facts so
warrant, the Court could impose up to the statutory maximum sentence in this
case.” Lopez responded that he understood. His argument on this point is
without merit.
Lopez also claims that the lack of a fast-track early disposition program
in the Northern District of Texas has deprived him of a sentencing reduction in
violation of his equal protection rights, and has resulted in an unwarranted
sentencing disparity under § 3553(a)(6).2 As this court has recently explained,
any disparity in sentencing between fast-track and non-fast-track jurisdictions
is a function of Congressional policy and thus is not “unwarranted” under
§ 3553(a)(6). United States v. Gomez-Herrera, --- F. 3d ---, 2008 WL 886091, *4-
*6 (5th Cir. 2008). Lopez’s equal protection argument fails as well, because the
fast-track program does not implicate either a suspect class or a fundamental
right. United States v. Rodriguez, --- F.3d ---, 2008 WL 853576, *6 (5th Cir.
2008). The current structure of the fast-track program is rationally related to,
among others, the goals of promoting judicial efficiency, preserving prosecutorial
1
480 F.3d 713, 723 (5th Cir. 2007). We note that the Supreme Court has granted
certiorari on a similar question in United States v. Irizarry, 458 F.3d 1208 (11th Cir. 2006),
cert. granted 76 U.S.L.W. 3329 (U.S. Jan. 4, 2008) (No. 06-7517). Absent an intervening
Supreme Court case overruling prior precedent, we remain bound to follow our precedent even
when the Supreme Court grants certiorari on an issue. United States v. Short, 181 F.3d 620,
624 (5th Cir. 1999); Ellis v. Collins, 956 F.2d 76, 79 (5th Cir. 1992).
2
Lopez also claims, in a point heading, that his due process rights were violated, but
he fails completely to develop this argument in the body of his brief. Arguments inadequately
briefed on appeal are waived. United States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005).
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Nos. 07-10151; 07-10321
discretion, and limiting downward departures overall. Id.; Gomez-Herrera,
2008 WL 886091 at *5 - *6. Lopez has shown no grounds for reversal here.3
II
Concerning his twenty-month sentence on revocation of his supervised
release, Lopez makes no independent argument. He simply asserts that this
sentence “magnifies” the unreasonableness of his seventy-two-month sentence.
Lopez has directed this court to no authority suggesting that his revocation
sentence, based on an entirely separate conviction in the District of Arizona, has
any bearing on the reasonableness of the sentence imposed for his most recent
conviction. As above, the seventy-two-month sentence was reasonable. The
revocation sentence of twenty months falls squarely within the bounds of the
eighteen to twenty-four month Guideline range, and is presumptively reason-
able. Gall, 128 S. Ct. at 597. Lopez has not rebutted this presumption, nor has
he shown any abuse of discretion.
CONCLUSION
For the aforementioned reasons, the sentences imposed are AFFIRMED.
3
Finally, Lopez contends that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000)
the enhancement provisions in 8 U.S.C. § 1326(b) are unconstitutional. He acknowledges this
argument is foreclosed by Almendarez-Torrez v. United States, 523 U.S. 224 (1998), but raises
the issue only to preserve it for Supreme Court Review. See United States v. Pineda-Arrellano,
492 F.3d 624, 625 (5th Cir. 2007), cert. denied 128 S. Ct. 872 (2008).
8