     Case: 10-40441 Document: 00511498047 Page: 1 Date Filed: 06/03/2011




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

                                              FILED
                                                                June 3, 2011
                               No. 10-40441
                             Summary Calendar                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee
v.

JOSE AVELINO LUIS-RODRIGUEZ, also known as Jose Avelino Luis, also
known as Joe Avelino Luis, also known as Jose Luis

                                         Defendant-Appellant

Cons. w/ No. 10-40444

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee
v.

JOSE AVELINO LUIS RODRIGUEZ

                                         Defendant-Appellant


                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 5:10-CR-655-1
                          USDC No. 5:09-CR-2871-1
     Case: 10-40441 Document: 00511498047 Page: 2 Date Filed: 06/03/2011

                                       No. 10-40441
                                     c/w No. 10-40444

Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Jose Avelino Luis-Rodriguez pleaded guilty to illegal reentry of a deported
alien. The agreement contained an appellate-waiver provision, wherein Luis-
Rodriguez agreed to waive his right to appeal his conviction and sentence. In
exchange for the plea, the Government agreed, inter alia, to move the district
court for an additional one-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(b), provided that Luis-Rodriguez qualified for a two-level
adjustment under § 3E1.1(a), and his offense level before the application of
§ 3E1.1(a) was 16 or higher.           Despite these conditions being satisfied, the
Government did not move for the additional one-level reduction. The district
court sentenced Luis-Rodriguez above the guidelines range to 60 months of
imprisonment and imposed a three-year term of supervised release. The court
concomitantly revoked Luis-Rodriguez’s supervised release for his prior illegal
reentry offense and sentenced him to a revocation sentence of 21 months of
imprisonment. The district court directed that the revocation sentence be served
consecutively to the sentence for the instant illegal reentry offense.
       Luis-Rodriguez argues that the Government breached the plea agreement
by failing to move the district court for an additional one-level reduction under
§ 3E1.1(b). He argues that this breach constituted reversible plain error because
the Government’s failure to fulfill its promises in the plea agreement was a clear
error that implicates the validity of his guilty plea. He requests that we vacate
his sentences in the illegal reentry and revocation cases and remand the matters
to the district court for further proceedings.




       *
         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. 10-40441
                                c/w No. 10-40444

      Whether the Government breached a plea agreement is a question of law
that this court typically reviews de novo and may consider despite the appeal
waiver. United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001); United States
v. Keresztury, 293 F.3d 750, 757 (5th Cir. 2002).       However, because Luis-
Rodriguez raises this argument for the first time on appeal, review is for plain
error only. See Puckett v. United States, 129 S. Ct. 1423, 1428 (2009). To show
plain error, Luis-Rodriguez must show a forfeited error that is clear or obvious
and that affects his substantial rights. Id. at 1429. If he 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. The record
supports that the Government did not comply with its obligation under the plea
agreement to move for a one-level reduction under§ 3E1.1(b). Thus, as the
Government concedes, there was an error that was clear and obvious. See id.
      However, Luis-Rodriguez has failed to establish that the breach of the plea
agreement affected his substantial rights. He specifically has not shown that he
would have received a lesser sentence but for the Government’s breach. See id.
at 1432-33 & n.4. The record supports that Luis-Rodriguez would have received
a similar above-guidelines sentence even if the Government had moved for the
additional one-level reduction. The district court found that the circumstances
in this case warranted an above-guidelines sentence and specifically identified
the minimum sentence that it intended to impose for the illegal reentry offense,
i.e., 60 months of imprisonment. The court noted that a lengthier sentence was
justified but that the sentence was limited to 60 months because Luis-Rodriguez
was subject to a consecutive term of imprisonment for his revocation. The record
therefore supports that the court intended to impose a minimum of 60 months
of imprisonment for the illegal reentry offense and that this intended sentence
was not affected by the applicable guidelines range. Because Luis-Rodriguez has
failed to establish that he would have received a lesser sentence if the court had


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                                  No. 10-40441
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applied the one-level reduction, he has not shown that his substantial rights
were affected by the Government’s breach. See id at 1433 n.4.
      Luis-Rodriguez also asserts that the sentence imposed was procedurally
and substantively unreasonable. He argues that the district court procedurally
erred by failing to use the proper guidelines range – i.e., the range that would
have applied had the Government moved for the additional one-point reduction
under § 3E1.1(b) – as a frame of reference. Luis-Rodriguez further contends that
his sentence was substantively unreasonable because the district court based its
sentence solely on Luis-Rodriguez’s criminal history and recidivism and did not
consider his medical condition and his motive for reentering the country, i.e.,
concern for the welfare of his mother. He also asserts that the sentence imposed
was greater than necessary to achieve the sentencing goals of 18 U.S.C.
§ 3553(a). Although these claims ostensibly are covered by the appeal waiver,
we may consider them because the Government breached the plea agreement.
See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).
      This court reviews sentences for reasonableness by engaging in a
bifurcated review. Gall v. United States, 552 U.S. 38, 49-51 (2007). This court
first examines whether the district court committed any significant procedural
error. Id. at 51. If the district court’s decision is procedurally sound, this court
will then “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id. Although Luis-Rodriguez objected
in the district court to the substantive reasonableness of his sentence, thereby
rendering that claim subject to review for reasonableness under an abuse of
discretion standard, id., he did not object in the district court to the procedural
reasonableness of his sentence.        Accordingly, review of the procedural
reasonableness claim is for plain error only.             See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).




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                                 No. 10-40441
                               c/w No. 10-40444

      Luis-Rodriguez has not shown that the district court committed procedural
error by not determining the guidelines range that would have applied if the
Government had moved for a one-level reduction under § 3E1.1(b). Because the
district court could not award a third point for acceptance of responsibility
absent a motion by the Government, and the Government did not make such a
motion, the guidelines range that would have applied if the Government had
moved for the reduction was not the proper guidelines range. See United States
v. Newson, 515 F.3d 374, 377-78 (5th Cir. 2008); § 3E1.1, comment. (n.6). Also,
even if the Government had made the requisite motion, the district court was not
required to grant the reduction; the district court retained discretion to decide
whether the one-level reduction under § 3E.1.1(b) would apply even if it granted
a two-level reduction under § 3E1.1(a) and the Government moved for the
additional one-level reduction under § 3E.1.1(b). United States v. Williamson,
598 F.3d 227, 229-30 (5th Cir. 2010). The district court’s failure to consider an
inapplicable guidelines range does not constitute procedural error.
      Luis-Rodriguez also has not demonstrated that the sentence imposed for
the illegal reentry was substantively unreasonable. In pronouncing sentence,
the district court noted that its upward variance was justified in light of Luis-
Rodriguez’s extensive criminal history and recidivism; his prior conviction of an
illegal reentry offense; his refusal to show respect for the laws of the United
States; the inability of prior terms of imprisonment to deter him from criminal
conduct; and his history and characteristics of continuing to commit offenses.
Thus, the district court made an individual assessment and concluded that the
advisory guidelines range gave insufficient weight to some of the sentencing
factors.   See United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008);
§ 3553(a). The court cited fact-specific reasons for imposing a non-Guidelines
sentence, and its reasons for imposing a variance adequately reflected the
§ 3553(a) sentencing factors. See United States v. Tzep-Mejia, 461 F.3d 522, 527


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                                 No. 10-40441
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(5th Cir. 2006). Accordingly, the record supports that Luis-Rodriguez’s above-
guidelines sentence was reasonable “under the totality of the relevant statutory
factors.” United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
      Furthermore, the record supports that the district court considered Luis-
Rodriguez’s medical condition and his motive for returning to the country and
concluded that those factors did not outweigh other sentencing matters
justifying an upward variance. The sentencing judge’s assessment of the § 3553
factors is entitled to deference, and we may not reweigh the § 3553(a) factors or
reverse a sentence because we might reasonably conclude that a different
sentence is proper. United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th
Cir. 2008). With respect to the extent of the difference between Luis-Rodriguez’s
guidelines range and the sentence imposed, this court has affirmed comparable
– and more significant – differences. See United States v. Herrera-Garduno, 519
F.3d 526, 531-32 (5th Cir. 2008); United States v. Smith, 417 F.3d 483, 492-93
(5th Cir. 2005).
      To the extent that Luis-Rodriguez argues that the 21-month revocation
sentence magnifies the unreasonableness of his 60-month sentence for the illegal
reentry offense, a revocation sentence based on a separate conviction has no
bearing on the reasonableness of the sentence imposed for the most recent
conviction. See United States v. Lopez-Velasquez, 526 F.3d 804, 808-09 (5th Cir.
2008). The 21-month revocation sentence was within the range recommended
by the policy statements found in Chapter Seven of the Guidelines, as well as the
statutory maximum, and the consecutive nature of the sentence is expressly
authorized. See 18 U.S.C. §§ 3583(e)(3), 3584; U.S.S.G. §§ 7B1.4(a), 7B1.3(f)
      The judgments of the district court are AFFIRMED.




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