     Case: 14-11312      Document: 00513311372         Page: 1    Date Filed: 12/16/2015




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

                                    No. 14-11312                                 FILED
                                  Summary Calendar                       December 16, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERGIO ANGEL CASTILLO-GUERRA, also known as Sergio Castillo-Guerra,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-130-2


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Sergio Angel Castillo-Guerra (Castillo) appeals the 210-month sentence
imposed on his guilty plea conviction for conspiring to possess with intent to
distribute and to distribute cocaine. See 21 U.S.C. §§ 841(a)(1) and (b)(1)(C),
846. Castillo contends that the district court committed plain error by using
the wrong guidelines edition when calculating his sentencing range, erred
procedurally in determining drug quantity, violated his due process rights by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11312

using unadjudicated acts information to sentence him, and imposed a sentence
that was substantively unreasonable. Because Castillo did not present the
district court with any of the arguments he advances on appeal, we review for
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009); see also
United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008).
      The district court’s error in using the 2013 edition of the Sentencing
Guidelines instead of the 2014 edition did not affect Castillo’s substantial
rights, as U.S.S.G. § 2D1.1(c)(1) of each edition assigned the same base offense
level for the 480-kilograms for which Castillo is accountable. See Puckett, 556
U.S. at 135.   We reject also Castillo’s contention that drug quantity was
improperly calculated. Because determination of drug quantity is a factual
finding, and because he did not properly object, precedent dictates that Castillo
cannot prevail on plain error review. See United States v. Betancourt, 422 F.3d
240, 246 (5th Cir. 2005).     We decline Castillo’s invitation to break with
precedent. See United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.
2002). Moreover, even assuming arguendo that we could review the district
court’s factual determination that Castillo was accountable for 480 kilograms
of cocaine, that determination was not clearly erroneous.
      There is no merit to the argument that the district court violated due
process by relying on unadjudicated facts. To the extent that the assertion that
the determination of the date of Castillo’s initial involvement in drug
trafficking is tethered to the claim that drug quantity was miscalculated, it
fails; the determination is a factual one and offers at best a slim basis for
reversal on plain error review. See Claiborne, 676 F.3d at 438. Additionally,
the claim that the district court relied on a report of an assault incident in
Mexico does not entitle Castillo to relief on plain error review. The record “does
not indicate that it is reasonably probable” that the district court would have



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                                  No. 14-11312

imposed a lesser sentence had it not considered the incident. United States v.
Jones, 444 F.3d 430, 438 (5th Cir. 2006). Moreover, even if there were a
reasonable probability that Castillo’s sentence would have been less had the
district court not considered the incident in Mexico, the error did not seriously
affect the fairness, integrity, or public reputation of judicial proceedings. See
Puckett, 596 U.S. at 135. Even if improper, the district court’s mention of the
Mexican incident did not “go to the criminality of” Castillo’s conduct in the
instant case but instead arguably affected only “the discretionary decision of
how lengthy a sentence is necessary to provide adequate deterrence and
protect the public.” United States v. Jones, 489 F.3d 679, 683, 683-84 (5th Cir.
2007).
      Castillo’s challenge to the substantive reasonableness of the sentence
fails on plain error review because Castillo “cannot demonstrate any error at
all.” United States v. Teuschler, 689 F.3d 397, 400 (5th Cir. 2012). The district
court explained that the sentence was appropriate under 18 U.S.C. § 3553(a).
Moreover, because the sentence is “within a properly calculated Guideline
range,” an inference arises that the district court considered “all the factors for
a fair sentence set forth in the Guidelines.” United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005).     In this circuit, a within-guidelines sentence “is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).   Nothing in the record counsels in favor of not applying the
presumption of reasonableness. See Gall v. United States, 552 U.S. 38, 51
(2007).
      The judgment is AFFIRMED. Castillo’s motion to relieve counsel and to
appoint new counsel is DENIED.




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