Case: 09-20461 Document: 00511063354 Page: 1 Date Filed: 03/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2010
No. 09-20461
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ELEAZAR VARGAS-GUTIERREZ, also known as Jose Vargas Vargas,
also known as Jose Vargas,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-52-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Eleazar Vargas-Gutierrez (Vargas) pleaded guilty to illegal reentry
into the United States following deportation. See 8 U.S.C. § 1326(a). Vargas
claims that his 70-month sentence, which was near the high end of the properly
calculated guidelines range, is substantively unreasonable and that he should
have been granted a downward departure and sentenced below the guidelines
range. Vargas asserts that the district court did not apply the 18 U.S.C.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-20461
§ 3553(a) factors properly, did not take into account his cultural assimilation into
the United States, created an unwarranted disparity between his sentence and
the sentences of others convicted of illegal reentry, and imposed a sentence that
violated the Eighth Amendment’s bar against cruel and unusual punishment.
A defendant whose motion for a downward departure has been overruled
may argue on appeal that his sentence was unreasonable because the district
court “failed adequately to consider factors counseling in favor of a downward
departure.” United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied,
128 S. Ct. 163 (2007). Reasonableness review is bifurcated; if a review of the
sentence for procedural error reveals none, the appellate court then determines
whether the sentence is substantively reasonable. Gall v. United States, 552
U.S. 38, 51 (2007). If error has been preserved, an appellate court reviewing for
reasonableness “merely asks whether the trial court abused its discretion.” Rita
v. United States, 551 U.S. 338, 351 (2007). Substantive reasonableness is
determined in light of the § 3553(a) sentencing factors. Gall, 552 U.S. at 49-50.
Although he asked for a sentence below or the guidelines range, Vargas
did not specifically object to the sentence that was imposed. Consequently, it is
questionable whether he is entitled to review for abuse of discretion or merely
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Because Vargas is unable to show
either abuse of discretion or plain error, however, we need not decide which
standard of review applies.
While Vargas declared to the district court that the PSR incorrectly
recounted his prior conviction for aggravated robbery, it is clear that Vargas
failed to persuade the district court that this was so and that a downward
departure was in order. A sentencing court may rely on information in the PSR
in making factual determinations about a sentence unless the defendant shows,
by credible rebuttal evidence, that the PSR is untrue or inaccurate. United
States v. Ford, 558 F.3d 371, 376-77 (5th Cir. 2009). Although it made no
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No. 09-20461
explicit credibility determinations, when the district court adopted the PSR in
the face of Vargas’s objections it implicitly rejected Vargas’s account of the prior
crime. The district court was not required to accept Vargas’s self-serving
declarations, made with the purpose of reducing his sentence, about the
circumstances of leading to his prior conviction. See United States v. Buenrostro,
868 F.2d 135, 138 (5th Cir. 1989).
Vargas’s parity argument is equally unavailing. In considering an
appropriate sentence, the district court must account for “the need to avoid
unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” § 3553(a)(6). But because Vargas
identified no defendant whose situation was similar to his own, he was unable
to establish any sentencing disparity. See United States v. Duhon, 440 F.3d 711,
721 (5th Cir. 2006).
Vargas’s assertion of an Eighth Amendment claim is conclusory and
unsupported by legal analysis. An appellate court is not required to search the
record to find the legal basis for an issue. United States. v. Brace, 145 F.3d 247,
255 (5th Cir. 1998) (en banc). Because Vargas is represented by counsel on
appeal, his brief is not entitled to liberal construction. See Beasley v. McCotter,
798 F.2d 116, 118 (5th Cir. 1986). Issues must be briefed to be preserved. F ED.
R. A PP. P. 28(a)(9). Accordingly, this issue is not preserved and will not be
considered.
Because it was within the properly calculated guidelines range, Vargas’s
sentence is entitled to a presumption of reasonableness. See United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005). The district court, moreover,
considered Vargas’s argument for a sentence below the guidelines range but
determined that the record and the factors set forth in § 3553(a) called for
sentence at the high end of that range. Vargas has not favored us with any good
reason for disturbing that decision. See Gall, 552 U.S. at 51.
AFFIRMED.
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