     Case: 10-40502     Document: 00511686670         Page: 1     Date Filed: 12/06/2011




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

                                                                            FILED
                                                                         December 6, 2011
                                     No. 10-40502
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN CONTRERAS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:02-CR-562-4


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Juan Contreras appeals his sentence, which was imposed pursuant to a
resentencing hearing in 2010. In 2003, Contreras was convicted of one count of
conspiracy to possess with the intent to distribute more than 1,000 kilograms of
marijuana, two counts of possession with intent to distribute 100 kilograms or
more of marijuana, and two counts of carrying a firearm during the commission
of a drug-trafficking offense. He was sentenced to 652 months in prison. After
Contreras’s conviction and sentencing, the United States Supreme Court decided

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40502            Document: 00511686670         Page: 2    Date Filed: 12/06/2011

                                           No. 10-40502

United States v. Booker,1 and Contreras’s co-defendants mounted successful
challenges to their sentences on the basis of that decision. Contreras’s conviction
and sentence were affirmed, however, because his attorney failed to bring a
Booker claim on appeal.2 Contreras therefore brought a claim of ineffective
assistance of counsel under 28 U.S.C. § 2255, and the district court granted
relief.3 In May 2010, it resentenced Contreras to concurrent 120 month terms
for his drug convictions, a consecutive 60 month term for the first firearm
offense, and a consecutive 300 month term for the second firearms offense. This
amounted to a total imprisonment period of 480 months, instead of the original
652 month sentence.
          On appeal, Contreras challenges the reasonableness of his new sentence.
When reviewing such a challenge, this court follows a two-step approach. First,
we consider “whether the district court committed a procedural error,”4 such as
“miscalculating or failing to calculate the sentencing range under the Guidelines,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence – including an explanation for any deviation from
the Guidelines range.”5 This review is for abuse of discretion.6 If the appellant
raises his procedural objections for the first time on appeal, however, this court


          1
              543 U.S. 220 (2005).
          2
              United States v. Jimenez, 509 F.3d 682 (5th Cir. 2007), cert. denied, 553 U.S. 1101
(2008).
          3
              Contreras v. United States, 682 F. Supp.2d 771 (S.D. Tex. 2010).
          4
              United States v. Valencia, 600 F.3d 389, 433 (5th Cir.), cert. denied, 131 S.Ct. 285
(2010).
          5
        United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.), cert. denied, 130
S.Ct. 192 (2009).
          6
        United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, 129 S.Ct.
625 (2008).

                                                   2
   Case: 10-40502        Document: 00511686670       Page: 3    Date Filed: 12/06/2011

                                        No. 10-40502

will only grant relief upon a showing of plain error.7 In such a case, the
appellant must show that the district court’s error was clear and obvious, and
that it affected his substantial rights.8           Furthermore, this court has the
discretion to correct such an error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”              If there was no
procedural error, this court then “engages in a substantive review [of the
challenged sentence] based on the totality of the circumstances.”9 10
       Contreras identifies several procedural errors allegedly committed by the
district court during his resentencing. He contends that the court incorrectly
calculated his sentencing guideline range, failed to rule on his role reduction and
downward departure motions, and did not give sufficiently specific explanations
for its decision to impose a sentence that varied from the guidelines range. In
addition, Contreras argues that the court failed to follow the procedural steps
required by Amendment 741 of the Sentencing Guidelines. Because Contreras
failed to object to any of these alleged procedural errors below, we review only
for plain error.11 None of Contreras’s arguments meet this standard.
       The district court heard oral argument on each one of Contreras’s
arguments for a lower sentence. It ultimately imposed the mandatory minimum
sentence of 120 months for his drug offenses, which fell below the guideline
range. At the sentencing hearing and in its written Statement of Reasons, the
court provided extensive explanations for its decision.                  These included
discussions of several 18 U.S.C. § 3553(a) factors, the circumstances of the

       7
           Id.
       8
        Mondragon-Santiago, 564 F.3d at 361; see also United States v. Olano, 507 U.S. 725,
734 (1993) (“‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’”).
       9
           Id.
       10
         United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (quoting United States v.
Cotton, 535 US. 625, 631 (2002)).
       11
            Lopez-Velasquez, 526 F.3d at 806.

                                                3
   Case: 10-40502         Document: 00511686670        Page: 4     Date Filed: 12/06/2011

                                        No. 10-40502

offense, Contreras’s lack of criminal history, his good behavior, his mitigating
arguments, his low likelihood of recidivism, and the need to avoid unwarranted
disparity in sentencing. Such a detailed explanation fulfilled the district court’s
responsibility to justify its sentence and departure from the guidelines using
specific facts of the case and § 3553(a) factors.12 Although the district court did
not explicitly rule on Contreras’s motions for a lower sentence, it discussed
Contreras’s arguments in explaining how it calculated the sentence. Thus,
Contreras’s claims that the court failed to consider these issues and to
adequately explain the sentence are without merit or factual support.
       Contreras’s contention that the district court erred by failing to enunciate
a guidelines range during sentencing is similarly without merit. In its written
Statement of Reasons, the district court adopted the findings and conclusions of
the Presentence Report (“PSR”), including its proposed guidelines range of 292
to 365 months. In doing so, the court implicitly rejected Contreras’s arguments
and motions for a lower range. Contreras’s second argument regarding the
guidelines range – that the PSR miscalculated the offense level – is similarly
unavailing. Contreras was arrested with cocaine as well as marijuana in his
possession. Although he was only charged for the marijuana, the PSR took
account of the cocaine in calculating the base offense level. Contreras challenged
this decision in his previous appeal. This court rejected his argument, holding
that “the district properly could have found the uncharged cocaine to be relevant
conduct.”13 Under the law of the case doctrine, Contreras cannot now relitigate
this issue.14 Exceptions to this doctrine allow reexamination only if “(i) the
evidence on a subsequent trial was substantially different, (ii) controlling

       12
          See United States v. Rodriguez, 523 F.3d 519, 252–26 (5th Cir. 2008); United States
v. Rajwani, 476 F.3d 243, 250–51 (5th Cir. 2007); United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006).
       13
            Jimenez, 509 F.3d at 693–94.
       14
            United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002).

                                               4
   Case: 10-40502         Document: 00511686670         Page: 5     Date Filed: 12/06/2011

                                         No. 10-40502

authority has since made a contrary decision of the law applicable to such issues,
or (iii) the decision was clearly erroneous and would work a manifest injustice.”15
Contreras has presented no evidence that any of these exceptions apply.
Therefore, he has not shown that the district court committed plain error in
adopting the sentencing guidelines provided by the PSR.
       Finally, the district court did not commit plain error by failing to follow the
procedural requirements of Amendment 741 of the Sentencing Guidelines. The
district court must apply the Guidelines version in effect at the time of
sentencing.16 Amendment 741 was not in effect at the time of Contreras’s
sentencing proceeding and has not been made retroactively applicable. Thus,
the court’s alleged failure to follow the procedural steps outlined in that
amendment was not clear and obvious error.
       In the alternative, Contreras argues that his sentence should be reversed
because it was substantively unreasonable. A sentence that is consistent with
the guidelines range is presumptively reasonable in this Circuit.17 In order to
rebut that presumption, the appellant must show that “the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.”18
       Contreras rests his claim of substantive unreasonableness on the
contention that his sentence was disparate with that of his codefendant Benito


       15
            United States v. Becerra, 155 F.3d 740, 752–53 (5th Cir. 1998).
       16
         18 U.S.C. § 3553(a)(4)(ii); see also United States v. Randall, 2011 WL 3862862, *4 n.
6 (5th Cir.).
       17
         Mondragon-Santigao, 564 F.3d at 360. This court has also applied that presumption
to sentences below the guidelines range. See, e.g., United States v. Murray, No. 09-20813, 2011
WL 313305 at *6 (5th Cir. July 27, 2011); United States v. Salazar-Martinez, 413 Fed. Appx.
733, 733 n. 1 (5th Cir. 2011); United States v. Goodman, 307 Fed. Appx. 811, 812 (5th Cir.
2009).
       18
            United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).

                                                5
  Case: 10-40502         Document: 00511686670        Page: 6   Date Filed: 12/06/2011

                                           No. 10-40502

Villarreal. He points out that he received an aggregate sentence of 480 months,
while Villarreal received an aggregate sentence of only 120 months. The district
court explicitly took into account this disparity when it explained why it was
imposing a below-guidelines sentence. Therefore, the district court did not fail
to give weight to this factor. Furthermore, 360 months of Contreras’s sentence
are attributable to his conviction for firearms offenses on two counts. In
contrast, Villarreal was charged on only one gun count and acquitted. 120
months was also the lowest sentence that the court could impose by statute for
Contreras’s drug conviction.19               Consequently, Contreras has failed to
demonstrate that the district court imposed a substantively unreasonable
sentence against him.
      Accordingly, the judgment of the district court is AFFIRMED.




      19
           See 21 U.S.C. § 841(b)(1)(A).

                                                6
