     Case: 10-50036 Document: 00511280451 Page: 1 Date Filed: 11/01/2010




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

                                                  FILED
                                                                          November 1, 2010
                                        No. 10-50036
                                      Summary Calendar                      Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARTIN ALVARADO-ZAPATA,

                                                   Defendant-Appellant


                     Appeal from the United States District Court
                          for the Western District of Texas
                               USDC No. 2:08-CR-959-2


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Martin Alvarado-Zapata appeals his 188-month concurrent sentences for
conspiracy with intent to distribute more than 100 kilograms of marijuana,
conspiracy to import more than 100 kilograms of marijuana, possession with
intent to distribute more than 100 kilograms of marijuana, and importation of
more than 100 kilograms of marijuana. His two prior felony drug convictions
qualified him as a career offender under the Sentencing Guidelines.1 He asserts

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           See U.S.S.G. § 4B1.1(a).
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                                         No. 10-50036

that the sentences were unreasonable because the career offender guideline
overstated the danger he presents to the community, the severity of his conduct
as a mule who was paid a few hundred dollars to “carry a heavy bundle,” and the
need for deterrence. He contends that the career offender guideline unfairly
treated him the same way it treats serial violent offenders and the leaders of
drug organizations.         Additionally, he contends that the guideline failed to
account for his family’s economic circumstances or his personal characteristics
as a man who lived in poverty who sought to be a good father. He asserts that
a 10-year sentence would have been sufficient to deter him from future criminal
conduct. Finally, he contends that the sentence was unreasonable because it
was based in part upon unsubstantiated speculation by the district court that he
had committed additional drug trafficking crimes.
       We review sentences for reasonableness in light of the sentencing factors
in 18 U.S.C. § 3553(a).2 We first examine whether the district court committed
any significant procedural error, “such as . . . selecting a sentence based on
clearly erroneous facts.”3 Because Alvarado-Zapata did not raise his argument
in the district court that his sentences were based upon unsubstantiated
speculation about his criminal history, the potential procedural error is subject
to plain error review.4 He must show a forfeited error that is clear or obvious
and that affects his substantial rights.5 If he makes such a showing, we have the
discretion to correct the error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings.6

       2
        Gall v. United States, 552 U.S. 38, 46, 51 (2007); United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008).
       3
           Gall, 552 U.S. at 51.
       4
        See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied,
130 S. Ct. 192 (2009).
       5
           See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
       6
           See id.

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                                        No. 10-50036

      Although the district court asserted a belief that Alvarado-Zapata “ma[de]
his living” smuggling drugs and suggested that he had engaged in smuggling
activities for which he had not been caught, the record does not support a finding
that the court selected his sentences based upon that belief. The district court
emphasized that this was Alvarado-Zapata’s third drug trafficking conviction,
that he was caught with a greater amount of drugs each time, and that his
earlier federal sentences had not been adequate to deter his criminal behavior.
We find no plain error.7
      We then review the substantive reasonableness of the sentences under a
deferential abuse of discretion standard, taking into account the totality of the
circumstances.8 Because Alvarado-Zapata did not object to his sentences as
unreasonable in the district court, we review the issue for plain error, which
“requires considerable deference to the district court and erects a more
substantial hurdle to reversal of a sentence than does the reasonableness
standard.”9 We also apply a presumption of reasonableness to sentences that fall
within the Guidelines range.10
      The record shows that the district court properly considered the relevant
sentencing factors under § 3553(a) and sentenced Alvarado-Zapata at the bottom
of the guidelines range after considering his arguments for a downward
variance.      As noted above, the court emphasized Alvarado-Zapata’s prior
trafficking convictions, the increasing quantities of drugs he was caught with in
each successive conviction, and the failure of his earlier federal sentences to
deter his criminal activities. He fails to show that the district court committed




      7
          See Puckett, 129 S. Ct. at 1429.
      8
          Gall, 552 U.S. at 51; Cisneros-Gutierrez, 517 F.3d at 764.
      9
          United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      10
           United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

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                                      No. 10-50036

any error, plain or otherwise, in imposing the guidelines minimum, and he fails
to overcome the presumption of reasonableness.11
       The judgment of the district court is AFFIRMED.




      11
         See Puckett, 129 S. Ct. at 1429; Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92;
Alonzo, 435 F.3d at 554.

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