     Case: 11-20788     Document: 00511913135         Page: 1     Date Filed: 07/09/2012




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

                                                                            FILED
                                                                            July 9, 2012
                                     No. 11-20788
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ANGEL SANCHEZ, also known as Jose Providencio Sanchez, also known
as Angel Sanchez, also known as Angel Jose Sanchez, also known as Jose
Sanchez, also known as Jose P. Sanchez, also known as Angel J. Sanchez, also
known as Jose Sanchez Angel,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-431-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jose Angel Sanchez was convicted of being
unlawfully present in the United States after having been removed following his
conviction for an aggravated felony. He was sentenced at the low end of the
advisory guidelines range to a 57-month term of imprisonment. Sanchez claims
that the district court abused its discretion by failing to grant his request 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20788    Document: 00511913135      Page: 2   Date Filed: 07/09/2012

                                  No. 11-20788

downward variance for the purposes of crediting him for the eight months he
served in state and immigration custody while subject to an immigration
detainer and by failing to explain its reasons for denying that request.
Similarly, he claims that the sentence imposed was greater than necessary to
achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). He contends that
he was entitled to a shorter sentence in light of the time spent in custody subject
to the detainer, the victimless nature of the reentry offense, his benign motive
for reentering the United States, the unlikeliness that his prior offense would
recur, his sobriety, and his medical condition.
      Contrary to the government’s assertion, we do have jurisdiction to consider
whether, in light of the factors Sanchez raised in support of his argument for a
downward variance, Sanchez’s sentence is greater than necessary to achieve the
sentencing goals set forth in § 3553(a). Generally, we review criminal sentences
for reasonableness under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). If, however, a defendant failed to object to an error at
sentencing, we will review the issue for plain error only. Puckett v. United
States, 556 U.S. 129, 135 (2009). A sentence that falls within a defendant’s
properly calculated guidelines range is entitled to a rebuttable presumption of
reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Sanchez asserts that his sentence was procedurally unreasonable because
the district court did not specifically address his request for credit for time
served subject to the detainer. As Sanchez did not object to the district court’s
explanation of his sentence at sentencing, we review the issue for plain error
only. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). To show plain error, a defendant must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett, 556 U.S. at 135. If
the defendant makes such a showing, we have the discretion to correct the error,
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.

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                                  No. 11-20788

      At sentencing, the district court indicated it had read Sanchez’s sentencing
memorandum and the letters submitted by his family and friends. The court
listened to his request that it consider the time he had spent in prison and to his
counsel’s arguments in mitigation of sentence. In imposing a sentence at the low
end of the guidelines range, the court did not specifically address the request for
a time credit. Rather, the court explained that Sanchez was “exactly the kind
of person [Congress and the Sentencing Commission] had in mind” when they
formulated “harsh penalties” for persons who came to the United States illegally
after having committed “serious” crimes.
      Even if the district court’s failure to specifically address the argument for
an eight-month time credit was error that was clear or obvious, Sanchez cannot
show that an explanation of his within-guidelines sentence would have changed
his sentence and thus affected his substantial rights. See Mondragon-Santiago,
564 F.3d at 364-65.      The district court’s explanation does not constitute
reversible plain error. See id. at 362-65.
      Sanchez also contends that his 57-month sentence is substantively
unreasonable. In the district court, Sanchez requested a downward variance
because he had spent eight months in custody subject to the immigration
detainer and because the guidelines range overstated the seriousness of his
criminal history; however, he did not object to the reasonableness of the sentence
imposed. It is unclear under those circumstances whether Sanchez’s arguments
are limited to plain error review. See United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007) (holding that a defendant’s failure to object to the
reasonableness of his sentence limits our review to plain error); but see United
States v. Rodriguez, 523 F.3d 519, 525-26 & n.1 (5th Cir. 2008) (reviewing for
abuse-of-discretion a district court’s denial of a downward variance when the
defendant presented detailed assertions and testimony in support of the
variance, but did not specifically object to the reasonableness of his sentence).



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                                 No. 11-20788

We need not resolve the issue because Sanchez’s sentence may be affirmed even
under the more lenient abuse of discretion standard.
      The district court considered Sanchez’s reasons for an eight-month time
credit and for leniency in light of his particular criminal history, but it
determined that these factors did not outweigh other sentencing considerations.
Moreover, Sanchez’s reliance on the non-violent nature of his reentry offense and
his allegedly benign motive for reentering the United States are insufficient to
rebut the presumption of reasonableness.          See, e.g., United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Although Sanchez’s medical
condition could have supported a sentence below the guidelines range, he has not
and cannot show that it mandates that result. See, e.g., United States v.
Castillo, 430 F.3d 230, 240–41 (5th Cir. 2005). Sanchez has presented nothing
to indicate that the district court abused its discretion or otherwise erred in
weighing the § 3553(a) factors. See Gomez-Herrera, 523 F.3d at 565-66. His
disagreement with the propriety of the sentence imposed does not suffice to
rebut the presumption of reasonableness that attaches to his within-guidelines
sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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