IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 28, 2009
No. 08-10777
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERT DANIEL ARGUETA-LOPEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-25-ALL
Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Robert Daniel Argueta-Lopez (Argueta) appeals the sentence imposed in
July 2008 following his guilty plea conviction for being unlawfully present in the
United States following removal. The district court sentenced Argueta to 57
months of imprisonment and two years of supervised release, the lowest
sentence within the guidelines sentence range.
Argueta argues that the sentence was substantively unreasonable because
he illegally returned to the United States because gang members in El Salvador
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10777
threatened to kill him. He contends that the district court’s consideration of his
mitigation allegations in determining a within-guidelines sentence was an
implicit determination that his allegations were credible. He maintains that the
mitigating factors were so strong that a sentence within the guidelines range
was unreasonable because U.S.S.G. § 5K2.12 encourages a downward departure
when a defendant has been subjected to coercion or duress. Argueta
acknowledges the presumption of reasonableness afforded on appeal to sentences
within the guidelines sentence range, but he argues that the presumption has
been rebutted in this case because the district court did not give sufficient
weight to the death threats that led him to return to the United States and
because the sentence was a clear error of judgment in balancing sentencing
factors.
While Argueta moved for a downward departure or variance,1 he did not
object to the sentence as unreasonable. Thus, as Argueta concedes, his challenge
to the reasonableness of his sentence may be subject to plain error review. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128
S. Ct. 2959 (2008). We need not determine, however, whether plain error review
is appropriate in this case because Argueta is not entitled to relief even
assuming that he preserved the reasonableness issue for review. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008).
Argueta acknowledges that the sentence was within the properly
calculated guidelines range. Therefore, on appeal the sentence is rebuttably
presumed to be reasonable. See Rita v. United States, 127 S.Ct. 2456, 2462-67
(2007). Assuming arguendo that the district court found Argueta’s allegations
1
Argueta expressly disclaims seeking review of the district court’s failure to grant a
downward departure under the sentencing guidelines, stating in his reply brief in this court
that “The issue in this appeal is not, as the government erroneously interprets the Initial
Brief, whether ‘the district court erred in not departing downward in accordance with U.S.S.G.
§ 5K2.12.’”
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No. 08-10777
of duress credible, the allegations arguably set forth a mitigating factor. See,
e.g., United States v. Ortega-Mendoza, 981 F. Supp. 694, 695 (D.D.C. 1997).
Argueta’s record of violent criminal activity that included a conviction for
murder, however, was an aggravating factor. Cf. United States v. Smith, 440
F.3d 704, 708-10 (5th Cir. 2006) (upholding upward deviation based upon
defendant’s criminal record).
The PSR, which issued June 2, 2008, specifically noted that Argueta
stayed in El Salvador three days after being deported there in December 2007
before deciding to return to the United States, that he “indicated the MS-13
criminal street gang in El Salvador threatened to kill him twice and he feared
for his life . . . in addition to fearing for his life, the defendant indicated he
returned to the United States because he has no family in the (sic) El Salvador,
as his wife and children reside in Fort Worth.”
The PSR indicated that among Argueta’s previous convictions were a 1992
felony conviction for possession of a prohibited weapon and a December 1994
conviction for murder for which Argueta was sentenced to fifteen years’
imprisonment (from which he was released in November 2007 for time served).
The PSR also noted that in connection with Argueta’s 1994 guilty plea to
murder, two other murder charges, and two illegally carrying arms charges,
against him were dismissed as part of the plea bargain.
The PSR calculated the guidelines sentencing range as 57 to 71 months
(and two or three years’ supervised release).2
The PSR noted that a departure under U.S.S.G. § 4A1.3(a)(1) could
reasonably be applied, stating:
“The defendant has one murder conviction and there is reliable
information (from an eye witness) which indicates he was involved
in at least one other murder (paragraph 35). There is also reliable
information which indicates on two separate occasions, the
2
The statutory maximum imprisonment was 20 years. 8 U.S.C. § 1336(a) & (b)(2).
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No. 08-10777
defendant committed the offense of Unlawful Carrying a Weapon
(paragraphs 32 and 33). The violent and gun-related offenses for
which the defendant has been arrested as well as the number of
arrests he has, indicates the defendant has a disregard for the law
and there is a likelihood that he will commit future crimes. It would
not be unreasonable for the court to conclude that the defendant’s
Criminal History Category under-represents the seriousness of his
past criminal conduct or the likelihood that he will commit future
crimes.” (initial emphasis added)
On June 3, 2008, the government filed a statement that it had no objection
to the PSR and adopted it; it also stated that it opposed any downward
departure or non-guidelines sentence. On June 12, the defendant through
counsel filed his written “notice of no objection to presentence report.”
On June 26, 2008 defendant, through counsel, filed his motion requesting
that the court “department downward from the guideline range determined by
the Presentence Report or, in the alternative, to vary from such sentence.” The
substance of the motion was that defendant left El Salvador and could not safely
remain there because of the threats to his life made there by members of the
MS13 gang within the first three days of his arrival there pursuant to his
December 13, 2007 deportation. The motion was supported by various exhibits,
principally a copy of an April 10, 2008 motion to reopen the earlier immigration
proceedings and to seek from the relevant immigration authorities asylum,
withholding of removal and relief under the Convention Against Torture Act
filed by defendant’s immigration counsel and diverse supporting documents,
including an April 7, 2008 sworn statement of defendant. The defendant’s
motion in the court below requested “a sentence substantially lower than that
recommended under the guideline calculation of the Presentence Report,” but
otherwise did not indicate any specific desired range. It cited, inter alia, U.S.S.
G. §§ 5K2.11 and 5K2.12 and United States v. Ortega, 981 F. Supp. 694 (D. D.C.
1997).
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No. 08-10777
On July 1, 2008, the government filed its opposition to Argueta’s motion,
asserting that he should be granted neither a downward departure nor a
variance.
The sentencing hearing was held July 25, 2008. No sworn testimony nor
any other evidence was presented at the hearing. The district court initially
ascertained that defense counsel and the defendant personally had each read the
PSR and discussed it with each other, and that there were no objections to the
PSR. The court then generally adopted the factual findings and the conclusions
set forth in the PSR, and also further specifically found (all as stated in the
PSR), that the guidelines offense level was 21, criminal history category IV,
imprisonment range 57 to 71 months, and supervised release two or three years.
The court then asked defense counsel if he had anything to present in support
of his motion for downward departure or, in the alternative, for sentencing
variance, and counsel said he had nothing other than “the content of the motion.”
The court then observed “okay. Well I don’t think this is a case that there should
be a sentencing departure or sentencing variance, but I’m going to take into
account in determining what sentence to impose the arguments that you make
and the information you provided in the motion.”
The court invited defense counsel to make a statement on behalf of his
client. Counsel then briefly said he would simply “reiterate much of what’s
contained in the motion,” that when deported defendant had been gone so long
he really didn’t have much connection to El Salvador any longer, that he feared
for his life from the street gangs there and “that is what motivated his return to
the United States,” and that he had never previously been in court on “an
immigration offense.” He requested the court “to sentence as leniently as
possible given these circumstances.”
The defendant then personally gave a brief (some nine transcript lines)
unsworn statement, apologizing for his offense, stating he ‘didn’t have no choice
but to come in like that to ask for political asylum here,” that he wanted to “get
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No. 08-10777
a legal status to be able to stay with” his family, and requested leniency. His
counsel then stated that immigration counsel had advised that “there is some
legal possibility and factual possibility for relief” for Argueta in immigration
proceedings.
The court then sentence the defendant to 57 months’ imprisonment to be
followed by two years’ supervised release, and stated “I’ve taken into account all
of the factors the Court should consider under 18 United States Code, Section
3553(a), in determining what sentence to impose, and I’ve concluded that the
sentence I have imposed is a reasonable sentence that adequately and
appropriately considers all of those factors.”
The district court had before it both mitigating and aggravating factors.
The district court implicitly balanced these factors and determined that a
sentence at the low end of the guidelines range was appropriate. Considering
the totality of the circumstances, as we must, see Gall v. United States, 128 S.
Ct. 586, 597 (2007), Argueta has not shown that the sentence was an abuse of
the district court’s discretion. See Rita, 127 S. Ct. at 2470. “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, 128
S.Ct. at 597.
AFFIRMED.
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