     Case: 16-40089      Document: 00513905321         Page: 1    Date Filed: 03/09/2017




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

                                      No. 16-40089
                                                                              Fif h Circuit

                                                                            FILED
                                                                        March 9, 2017

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellee,

v.

MIGUEL ANGEL OROZCO-ELIZONDO,

              Defendant - Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1034-1


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Miguel Angel Orozco-Elizondo appeals the district
court’s refusal to reopen his sentencing hearing. We affirm.
       In October 2015, Orozco-Elizondo pleaded guilty, without a plea
agreement, to one count of illegal reentry, in violation of 8 U.S.C. § 1326. The
presentence report (“PSR”) reflected that his total offense level under the
Sentencing Guidelines was 21, which included a 16-level enhancement for a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40089         Document: 00513905321    Page: 2   Date Filed: 03/09/2017



                                     No. 16-40089
prior alien-smuggling conviction and a 3-level reduction for acceptance of
responsibility. 1 With his criminal history category of II, his sentencing range
was 41 to 51 months. 2
         Orozco-Elizondo filed a response to the PSR in which he requested a
downward variance based on the circumstances of his crossing the border. He
contended that his mother operated a small store out of her home in Nuevo
Laredo, Mexico, which had “provided a decent income” until the summer of
2015, when some young men began selling drugs on the corner of the street.
Orozco-Elizondo approached the men and requested that they relocate. They
did not comply, and shortly thereafter men began to drive down the street and
“slow down noticeably in front of the store before moving on.”
         Orozco-Elizondo’s girlfriend, Gloria Carrizales, a U.S. citizen, stayed in
Mexico with Orozco-Elizondo and his mother every weekend, coming to Nuevo
Laredo on Fridays and returning to Laredo, Texas, on Sundays. On August 9,
2015, Orozco-Elizondo was driving Carrizales to the bridge between Nuevo
Laredo, Mexico, and Laredo, Texas, when a truck with several men
approached. After telling her to walk over the bridge, Orozco-Elizondo began
to run when three men ran toward him. After deciding it was not safe to return
to his car near the bridge, he crossed the Rio Grande and illegally entered the
United States. He was arrested soon thereafter by border patrol agents.
         At the sentencing hearing, Orozco-Elizondo’s attorney requested a prison
sentence of 20 to 24 months and elaborated on his request. The district court
also allowed for allocution from Orozco-Elizondo. The district court imposed a




       U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a), (b)(1)(A)(vii) (U.S. SENTENCING
         1

COMM’N 2015).
         2   U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N
2015).
                                           2
     Case: 16-40089        Document: 00513905321          Page: 3     Date Filed: 03/09/2017



                                        No. 16-40089
sentence of 41 months of imprisonment, which the government recommended,
without supervised release or a fine.
       Immediately after the court announced Orozco-Elizondo’s sentence, his
attorney made the following objection:
       If I may, your Honor, we’d ask the Court to note our objection to
       the sentence as greater than necessary. We don’t quarrel with the
       Court’s procedure and then just our objection is the sentence being
       greater than necessary because of the length and the remoteness
       of the conviction and again the reasons as to why he found himself
       in the country. Ms. Carrisalas [sic], the Court did not hear this
       testimony of course and I’d like to proffer it if I may. She’s here in
       the—
The court interrupted defense counsel: “This case is over, thank you. Call the
next case.”
       Orozco-Elizondo timely appealed. He contends on appeal that the district
court abused its discretion when it denied his request to reopen the sentencing
hearing and allow Carrizales to testify. We review the district court’s
denial of Orozco-Elizondo’s request to reopen his sentencing hearing for abuse
of discretion. 3
       Orozco-Elizondo maintains that Carrizales’s testimony “could have made
all the difference to [his] sentencing defense of imperfect coercion or duress,”
which, he argues, the district court “gave the appearance of disbelieving . . . ,
in part because of alleged discrepancies in the story and in part because of the
lack of supporting evidence.” During the sentencing hearing, the district court
provided Orozco-Elizondo’s attorney with several opportunities to proffer



       3 See, e.g., United States v. Simpson, 408 F. App’x 830, 831 (5th Cir. 2011) (per curiam)
(“This court reviews a district court’s ruling on a motion to reopen a detention hearing under
§ 3142(f) for an abuse of discretion.” (citing United States v. Hare, 873 F.2d 796 (5th Cir.
1989))); United States v. Rodriguez, 43 F.3d 117, 125 (5th Cir. 1995) (“Whether to grant a
motion to reopen [the evidence] is within the trial court’s discretion, and the parties correctly
agree that the denial of a motion to reopen is reviewed for abuse of this discretion.”).
                                               3
     Case: 16-40089       Document: 00513905321          Page: 4     Date Filed: 03/09/2017



                                       No. 16-40089
Carrizales’s testimony, which he expressly declined to do. After confirming
that the parties had received copies of the PSR, the district court asked Orozco-
Elizondo’s attorney if he had any objections, to which defense counsel
responded, “No[] objection, Judge, just a request for a consideration for a
downward variance,” on which the court allowed him to elaborate extensively.
Defense counsel mentioned twice during the hearing that Carrizales was in the
courtroom, but at no point before the sentence was imposed did he offer her
testimony or put her on the stand. After defense counsel elaborated on the
circumstances surrounding Orozco-Elizondo’s reentry into the United States,
the district court yet again gave him an opportunity to present “anything
further,” which he declined.
       Despite defense counsel’s numerous opportunities to proffer Carrizales’s
testimony before the district court announced Orozco-Elizondo’s sentence and
counsel’s awareness of the court’s perceived skepticism of his “sentencing
defense of imperfect coercion or duress,” he did not attempt to proffer
Carrizales’s testimony until after the sentence was announced. We cannot say
that the district court abused its discretion in denying Orozco-Elizondo’s
counsel’s request to allow Carrizales to testify after it announced his sentence. 4
Accordingly, we affirm the district court’s denial of Orozco-Elizondo’s request
to reopen the sentencing hearing.
AFFIRMED.




       4 Both parties rely on our decision in United States v. Walker, 772 F.2d 1172 (5th Cir.
1985), in which another panel of this court held that courts must consider several factors
when determining whether to reopen the evidence in a criminal trial. Id. at 1177. Walker—a
case in which the defendant, who was emotionally and “documentarily” unprepared to testify
during his case-in-chief, sought to testify after the close of evidence—involved distinguishable
facts and is thus inapplicable. Id. at 1175–77.
                                               4
