United States v. Balleza-Cortez

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

FILED
June 2, 2009
No. 08-10816
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

TOMAS BALLEZA-CORTEZ

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-40-ALL

Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mexican national Tomas Balleza-Cortez (Balleza) appeals the 71-month
sentence he received following his guilty-plea conviction for illegal reentry, in
violation of 8 U.S.C. § 1326. For the first time on appeal, he argues that the
sentence imposed is unreasonable because the district court failed to explain
adequately its reasons for imposing sentence or for rejecting his mitigation
arguments. We review the newly raised argument for plain error only. United

*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
 No. 08-10816

States v. Casper, 536 F.3d 409, 416 (5th Cir. 2008), vacated on other grounds,
2009 U.S. LEXIS 3316 (U.S. May 4, 2009) (No. 08-7228); see also United States
v. Lopez-Velasquez, 526 F.3d 804, 806-07 (5th Cir.), cert. denied, 129 S. Ct. 625
(2008). To demonstrate plain error, Balleza show an error that is clear or
obvious and that affects his substantial rights. United States v. Baker, 538 F.3d
324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). If he makes such a
showing, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Balleza has failed to make the required showing. His arguments are
premised upon assertion that the district court did not explain the reasons for
imposing sentence, which assertion is factually incorrect. The record makes
plain that the district court declined to depart upwardly but relied upon the facts
in the presentence report that would justify such departure, to wit: the
extensiveness of Balleza’s criminal past, his suspected involvement in gang
activities, his two adult felony convictions, and his multiple uncharged illegal
reentries, as the reason for imposing sentence at the high end of the applicable
guidelines range; it further specifically stated that it had considered the
§ 3553(a) factors in making its determination. These reasons were sufficient.
See Rita v. United States, 127 S. Ct. 2456, 2469 (2007).
The within-guidelines sentence Balleza received is presumptively
substantively reasonable. See United States v. Mares, 402 F.3d 511, 519 (5th
Cir. 2005). Balleza has not demonstrated any clear or obvious error in the
district court’s judgment, and the judgment is therefore AFFIRMED.

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