     Case: 18-10575   Document: 00514992755   Page: 1   Date Filed: 06/12/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                         United States Court of Appeals
                                                                  Fifth Circuit
                               No. 18-10575                     FILED
                             Summary Calendar                 June 12, 2019
                                                           Lyle W. Cayce
                                                                Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

PEDRO MUNOZ,

                                         Defendant-Appellant

Consolidated with No. 18-10583

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

PEDRO MUNOZ RUIZ, also known as Pedro Carrillo, also known as Luis A.
Ruiz, also known as Luis Alberto Ruiz, also known as Pedro Ruiz, also known
as Pedro Martinez,

                                         Defendant-Appellant


                Appeals from the United States District Court
                     for the Northern District of Texas
                           USDC No. 4:10-CR-61
                           USDC No. 4:17-CR-230
     Case: 18-10575      Document: 00514992755           Page: 2   Date Filed: 06/12/2019


                                      No. 18-10575
                                    c/w No. 18-10583

Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Pedro Munoz appeals the 151-month sentence imposed on his guilty plea
conviction for possessing with intent to distribute a controlled substance. See
21 U.S.C. § 841(a)(1), (b)(1)(B).         Additionally, he appeals the 24-month
revocation sentence imposed on the related revocation of his term of supervised
release on an earlier conviction for illegal reentry. See 18 U.S.C. § 3583(e).
The district court ordered that these sentences be served consecutively. We
affirm both sentences.
       Ordinarily, we review an original sentence for reasonableness in light of
the sentencing factors of 18 U.S.C. § 3553(a). See Gall v. United States, 552
U.S. 38, 46, 49-50 (2007). In reviewing for reasonableness, we “merely ask[ ]
whether the trial court abused its discretion.” Rita v. United States, 551 U.S.
338, 351 (2007). We ordinarily review a revocation sentence to determine if it
is plainly unreasonable in light of certain sentencing factors set forth in
§ 3553(a), asking whether the district court abused its discretion. See United
States v. Miller, 634 F.3d 841, 843-44 (5th Cir. 2011).
       Under the bifurcated review process adopted in Gall, we first examine
whether the district court committed procedural error. See 552 U.S. at 51. We
employ a bifurcated process in the revocation context as well, applying the
revocation    abuse-of-discretion      standard     in    analyzing    the    substantive
reasonableness of a revocation sentence after examining for procedural error.
See Miller, 634 F.3d at 842-43. But review of any claim is for plain error if “the
defendant has the opportunity to seek vindication of [his] rights in district


       * 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. 18-10575
                               c/w No. 18-10583

court” but fails to avail himself of that opportunity. Puckett v. United States,
556 U.S. 129, 136 (2009).
      The parties disagree about the standard of review applicable to the
claims that the district court did not consider Munoz’s arguments for
downward variances and for concurrent sentences and did not adequately
explain its sentences and consequently that the sentences are procedurally
unreasonable. Munoz did not preserve his procedural arguments. See, e.g.,
United States v. Rouland, 726 F.3d 728, 732 (5th Cir. 2013). However, he has
shown no error at all and thus no plain error. See United States v. Teuschler,
689 F.3d 397, 400 (5th Cir. 2012). We need not decide whether plain error
applies to his challenge to substantive reasonableness, as Munoz does not
prevail under the ordinary standard. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
      A sentencing judge need not state “explicitly that he . . . heard and
considered” every argument the defendant made. Rita, 551 U.S. at 359. The
records in these consolidated cases make clear that the “sentencing judge
listened to each argument.” Id. at 358. The record shows also that the district
court considered the presentence report’s ample evidence of Munoz’s extensive
criminal history. Additionally, the district court remarked that its sentences
were appropriate in light of applicable factors listed in 18 U.S.C. § 3553(a).
Those remarks constituted an adequate explanation of the sentences in these
cases and of the reasons for rejecting, knowingly but implicitly, any downward
variance. See Rita, 551 U.S. at 345; see also United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005).
      With respect to substantive reasonableness, a within-guidelines
sentence “is presumptively reasonable.” United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006).     Also, a presumption of substantive reasonableness


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                                    No. 18-10575
                                  c/w No. 18-10583

attaches to a revocation sentence within the policy statement advisory range.
United States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008).
      Munoz’s suggestion that we reweigh the § 3553(a) factors is unavailing.
See Gall, 552 U.S. at 51. In light of the district court’s thorough review of the
records and recitation of the reasons justifying the sentences, Munoz offers no
adequate basis for forgoing application of the presumption of reasonableness
that attaches to each and for supplanting each with a sentence of this court’s
choice. See id.
      Nor does Munoz succeed in overcoming his failure to show that either
sentence is unreasonable in its own right by attacking the cumulative
sentence. The district court’s decision to order that the sentences be served
consecutively was authorized by statute and recommended by the Sentencing
Guidelines. See 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f) & comment. (n.4), p.s.
Given the deference owed the sentencing court, we see no reason to disturb the
district court’s exercise of its discretion.
      AFFIRMED.




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