     Case: 10-10678 Document: 00511498884 Page: 1 Date Filed: 06/06/2011




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

                                                 FILED
                                                                            June 6, 2011
                                     No. 10-10678
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ARMANDO BENAVENTE-FRANCO,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:10-CR-12-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Armando Benavente-Franco challenges his 96-month sentence, imposed
following his guilty-plea conviction for unlawful reentry, in violation of 8 U.S.C.
§ 1326.      He contends:      his sentence was substantively unreasonable; and
remand is necessary for the district court to consider whether a recent
sentencing Guideline amendment, eliminating recency points in determining a
criminal-history score, warrants a lesser sentence.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10678 Document: 00511498884 Page: 2 Date Filed: 06/06/2011

                                  No. 10-10678

      Although post-Booker, the sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the advisory
Guideline-sentencing range for use in deciding on the sentence to impose. Gall
v. United States, 552 U.S. 38, 51 (2007). In that respect, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      The presentence investigation report (PSR) computed Benavente’s
sentence as follows: a criminal-history category of V; a total-offense level of 21,
which included a 16-level enhancement based upon his previous felony
conviction for illegal transportation of aliens; and a Guideline range of 70 to 87
months’ imprisonment. In calculating his criminal history, the PSR assessed
Benavente 10 criminal-history points: two for a 2002 illegal-reentry conviction;
three for illegal-transportation-of-aliens conviction; two for driving while
intoxicated, coupled with a conviction for evading arrest; two for committing the
illegal-reentry offense while on supervised release; and one “recency” point for
committing the instant offense within two years of release from imprisonment
on the illegal-transportation-of-aliens conviction.      The PSR stated that an
upward departure would not be unreasonable, based on Benavente’s criminal
history.   The district court issued an order tentatively concluding that the
sentence imposed should be “significantly greater than the top of the advisory
guideline range” because of, inter alia, Benavente’s criminal history.
      At sentencing, the district court departed upward, pursuant to Guideline
§ 4A1.3 (warranting upward departure where reliable information indicates
criminal-history   category   substantially   under-represents    seriousness    of
defendant’s criminal history or the likelihood defendant will commit other
crimes). It appropriately considered Benavente’s pattern of criminal behavior
and disregard for the law, evidenced by prior convictions, including at least six

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                                   No. 10-10678

prior illegal entries, only one of which resulted in prosecution and for which he
served 90 days. See § 4A1.3(a)(1), (a)(2)(E); United States v. Zuniga-Peralta, 442
F.3d 345, 347-48 (5th Cir. 2006). Benavente contends: his criminal history is
less serious than that of the typical reentry defendant; his prior alien-
transporting offense is not as serious as other offenses that also result in a 16-
level enhancement; and the 16-level enhancement in illegal-reentry cases is
generally not justified.     Those contentions do not establish an abuse of
discretion.
      Moreover, his reliance on statistics regarding mean and median sentences
for illegal reentry, and the rate of departures in the Northern District of Texas,
is unavailing: those statistics shed no light on either the factors informing the
underlying sentencing decisions, or on whether his 96-month sentence was
unreasonable. See, e.g., United States v. Willingham, 497 F.3d 541, 544-45 (5th
Cir. 2007) (noting statistics on average sentence meaningless because disregards
individual circumstances). His sentence, nine months above the advisory-range
maximum, is within departure ranges our court has previously upheld. E.g.,
United States v. Jones, 444 F.3d 430, 442-43 (5th Cir. 2006); Zuniga-Peralta, 442
F.3d at 348.
      With regard to Benavente’s request for remand to permit the district court
to consider a Guideline amendment eliminating recency points, that amendment
was pending during Benavente’s sentencing, but he failed to raise that issue in
district court. Accordingly, that issue is reviewed only for plain error. Puckett
v. United States, 129 S. Ct. 1423, 1429 (2009).
      Under plain-error review, defendant must show a clear or obvious error
affecting his substantial rights. Id. Even if such showing is made, relief is
discretionary, and should be exercised only when the error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings”. Id. (citation and
internal quotation marks omitted).



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                                  No. 10-10678

      The district court was required to apply the Guidelines in effect at the time
of sentencing, United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir.
2007); its failure to consider sua sponte a pending amendment is not clear or
obvious error. Even assuming error, Benavente has not shown his substantial
rights were affected, because there is no evidence the court would have imposed
a lesser sentence without the recency point, particularly in the light of its
discussing Benavente’s criminal history.          See, e.g., United States v.
Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir. 2009). Further, although
the amendment was adopted while this appeal was pending, we reject
Benavente’s suggestion we should remand on that basis. See United States v.
Huff, 370 F.3d 454, 466 (5th Cir. 2004); United States v. McIntosh, 280 F.3d 479,
484-85 (5th Cir. 2002).
      AFFIRMED.




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