     Case: 13-41273      Document: 00512837506         Page: 1    Date Filed: 11/14/2014




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

                                    No. 13-41273                                  FILED
                                  Summary Calendar                        November 14, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAYMUNDO JOSE CABRERA-PARADES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-1821


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       Raymundo Jose Cabrera-Parades (Cabrera) appeals his 292-month
bottom-of-the-guideline-range sentence imposed following his guilty plea to
possession with intent to distribute approximately 15.4 kilograms of
methamphetamine.          Cabrera argues that the district court committed
procedural and substantive error at sentencing by considering incorrect facts,
applying the Guidelines as mandatory, applying the presumption of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41273

reasonableness to the sentencing guidelines range, and advocating the position
of the Government.
      Because Cabrera did not raise these arguments in the district court,
review is for plain error. United States v. Mondragon-Santiago, 564 F.3d 357,
361 (5th Cir. 2009). To demonstrate plain error, a defendant must show a
forfeited error that is clear or obvious and that affects his substantial rights,
and this court generally will exercise its discretion to correct the error only if
it “seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal
quotation marks and citation omitted).
      Cabrera has not demonstrated that the district court committed
procedural or substantive error based on its comments indicating its doubt that
the instant drug-trafficking case was Cabrera’s initial criminal activity. The
sentencing guideline range was calculated based on Cabrera having no
criminal history, and the district court did not depart or vary upward to a
higher criminal history category to increase Cabrera’s sentencing range. The
district court also sentenced Cabrera at the bottom of the range, which
contradicts the argument that it increased the punishment in light of its
thoughts on Cabrera’s criminal history. The record does not reflect that the
district court’s doubts about the accuracy of Cabrera’s criminal history had any
effect on the sentence imposed and, thus, it did not constitute a procedural or
substantive error that affected his substantial rights. See Puckett, 556 U.S. at
135; United States v. Delgado-Martinez, 564 F.3d 750, 752-54 (5th Cir. 2009).
      The record reflects that the district court listened to counsel’s arguments
and Cabrera’s allocution and relied on relevant factors in imposing a guideline
sentence.   The district court’s comments reflected its consideration of the
ongoing nature of Cabrera’s serious criminal activity, his continued



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                                 No. 13-41273

participation in the drug conspiracy, the harm that the drug activity caused to
his community and others, and the need to protect society by “catch[ing]”
criminals. Although the district court advised Cabrera that part of accepting
responsibility involved making his family aware of his criminal conduct, the
court was referring to family letters that expressed doubt that Cabrera had
committed the offense in question. The court did not, however, refuse to grant
Cabrera three points for acceptance of responsibility. The remarks reflect the
district court’s consideration of relevant 18 U.S.C. § 3553(a) factors and do not
show that the district court treated the Guidelines as mandatory or that it
lacked impartiality. See Gall v. United States, 552 U.S. 38, 49-53 (2007).
      A discretionary sentence imposed within a properly calculated guideline
range is entitled to a rebuttable presumption of reasonableness. United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Cabrera has not rebutted the
presumption of reasonableness because he has not shown that his sentence
failed to take into account a significant factor, gave significant weight to an
irrelevant or improper factor, or represented a clear error of judgment in
balancing the sentencing factors. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009). Because Cabrera has not demonstrated that the district
court committed a clear or obvious error that affected his substantial rights,
his sentence is AFFIRMED. See Puckett, 556 U.S. at 135.




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