IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2008
No. 07-51025
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MILTON ISMAEL GIL-CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-168-ALL
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Milton Ismael Gil-Cruz (“Gil”) appeals his 24-month non-Guidelines
sentence after pleading guilty to illegal reentry into the United States in
violation of 8 U.S.C. § 1326. Gil first argues that the district court committed
significant procedural error by failing to consider whether fast-track programs
in other districts created an unwarranted sentencing disparity in violation of its
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-51025
duty under 18 U.S.C. § 3553(a)(6). Because Gil objected to this issue before the
district court, we review for harmless error. See United States v. Olano, 507 U.S.
725, 734 (1993) (stating that harmless error applies when a defendant makes a
timely objection to an error). The argument that an unwarranted sentencing
disparity exists is foreclosed in this circuit. See United States v. Gomez-Herrera,
523 F.3d 554, 562-63 (5th Cir. 2008) (holding that any sentencing disparity
resulting from implementing fast-track programs is not unwarranted within the
meaning of § 3553(a)(6)). Accordingly, any error arising from the district court’s
refusal to consider Gil’s argument regarding unwarranted sentencing disparities
is harmless. See United States v. Mejia-Huerta, 480 F.3d 713, 720 (5th Cir.
2007) (noting that an error is harmless and must be disregarded “if it does not
affect the outcome of the district court proceedings”), cert. denied, 2008 U.S.
LEXIS 5210 (U.S. June 23, 2008) (No. 06-1381).
Gil similarly contends that the district court committed procedural error
by failing to independently assess the seriousness of his offense and by relying
instead on Congress’s determination that the offense is serious. We again review
for harmless error because Gil timely objected to this issue at sentencing. See
Olano, 507 U.S. at 734. Contrary to Gil’s argument, the record shows that the
district court assessed the seriousness of Gil’s illegal reentry offense based on its
particular nature and circumstances. Specifically, the district court considered
Gil’s many reasons for illegally reentering the United States. Gil’s counsel
stated: “[Gil] came from El Salvador because of the poverty there and also
because he’s lived [in the United States] most of his life and he wanted to help
his mother who is elderly and has . . . heart problems. . . . Also [Gil’s offense] is
not . . . a serious crime. He crossed a political boundary to reunite with his
family . . . .” The district court responded, “Congress has already said it’s serious
for prior convicted felons to return to the United States after they’ve been
deported. . . . [Also,] according to what you told the law enforcement officers, you
were going to Houston to find employment. You weren’t going to California to
2
No. 07-51025
be with your family, either your mother or your two children, so I take note of
that as well. . . . [And,] I believe . . . Gil believes he is entitled to be in the United
States because he’s been here a long time.” While it is true the district court
stated that Congress had determined the offense of illegal reentry is serious, the
district court also individually assessed the particular nature and circumstances
of Gil’s reentry offense. Accordingly, the district court did not err. See id.
Moreover, even assuming arguendo that the district court erred by failing
to consider the seriousness of Gil’s offense, any such error was harmless because
the district court would have imposed the same sentence. See United States v.
Pineiro, 410 F.3d 282, 285 (5th Cir. 2005) (explaining that an error is harmless
if it does not affect the sentence received). Gil asserts that if the district court
had considered his claim that he reentered the United States to help his family,
the district court would have concluded that the relative seriousness of his
reentry offense militated in favor of a within-Guidelines sentence. However, at
sentencing the district court considered the nature and circumstances of Gil’s
reentry offense, including his claim that he reentered to find employment to
support his family. Based on this consideration and on several other § 3553(a)
factors, the district court determined, “I don’t think that [Gil] respects the law
[given that this is his third illegal reentry]. I don’t think it’s just punishment for
[Gil] to be facing [a within-Guidelines sentence of] 14 months with such a serious
criminal history, some of it in the very recent past, and I don’t think that
anything we do short of punishing the defendant is going to deter any future
criminal conduct on his part.” The district court concluded that “the advisory
[G]uidelines are not adequate and that a fair and reasonable sentence can only
be achieved with a sentence outside of the advisory range.” This shows that the
district court determined that Gil’s reasons for reentering the United States did
not warrant a within-Guidelines sentence. Accordingly, the district court would
not have imposed a within-Guidelines sentence in any event, and the alleged
error was, at most, harmless error. See id.
3
No. 07-51025
Gil further argues that the district court violated Federal Rule of Criminal
Procedure 32(h) by not providing him with pre-hearing notice of its intention to
impose an above-Guidelines sentence. Because Gil raises this argument for the
first time on appeal, we review for plain error only. See United States v. Jones,
444 F.3d 430, 443 (5th Cir. 2006) (noting that plain error review applies to
unraised issues regarding lack of reasonable notice under Rule 32(h)). The
Supreme Court recently resolved the circuit split regarding whether Federal
Rule of Criminal Procedure 32(h) requires a district court to give pre-sentencing
notice of its intention to impose Guidelines “variances”— that is, to impose non-
Guidelines sentences. See Irizarry v. United States, __ U.S. __, No. 06-7517,
2008 WL 2369164, at *4 (June 12, 2008). The Court held that Rule 32(h) is
inapplicable to Guidelines variances. Id. Accordingly, the Fifth Circuit’s current
law on this issue remains binding. See Mejia-Huerta, 480 F.3d at 716 (holding
that pre-sentencing notice is not required to impose a non-Guidelines sentence).
Therefore, in the instant case, the district court was not required to give prior
notice, and Gil has not demonstrated plain error. See id; Jones, 444 F.3d at 436.
Gil finally contends that his sentence is unreasonable because it does not
meet the sentencing objectives of § 3553(a). We review this issue for abuse of
discretion. See Gall v. United States, 128 S. Ct. 586, 597 (2007) (stating that
appellate courts review sentences for reasonableness under the abuse-of-
discretion standard). The record shows that the district court properly
considered the requisite § 3553(a) factors and based its decision to upwardly
vary from the Guidelines primarily on § 3553(a)(1) and (2). The district court
considered Gil’s various reasons for illegally reentering the United States,
including his claim that he reentered to support his family, and noted that Gil
believed he was entitled to be in the United States given his long residency.
Reasoning that this was Gil’s third illegal reentry, with two reentries following
felony convictions, the district court concluded that Gil did not respect the law.
The district court further relied on the seriousness of Gil’s criminal history,
4
No. 07-51025
including his unscored prior drug-trafficking conviction, and stated that
defendants with similar convictions usually receive 16-level sentencing
enhancements. The district court determined that in light of Gil’s
characteristics and of the nature and circumstances of his offense, an above-
Guidelines sentence was required to reflect the seriousness of his offense, to
promote respect for the law, to provide just punishment, and to deter criminal
conduct. See § 3553(a)(1)-(2). Accordingly, the district court did not abuse its
discretion in imposing Gil’s 24-month sentence. See Gall, 128 S. Ct. at 597.
For the foregoing reasons, the district court’s judgment is AFFIRMED.
5