     Case: 14-50125       Document: 00512828545         Page: 1     Date Filed: 11/06/2014




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

                                     No. 14-50125
                                                                                    Fifth Circuit

                                                                                  FILED
                                   Summary Calendar                        November 6, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                  Plaintiff - Appellee

v.

MATEO MENDEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-138-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Mateo Mendez appeals the 33-month sentence (above-Guidelines
sentencing range of 15-21 months’ imprisonment) imposed following his guilty-
plea conviction for illegal reentry following deportation, in violation of, inter
alia, 8 U.S.C. § 1326(a). The district court enhanced Mendez’ offense level four
levels for a prior felony conviction for illegal reentry following deportation,
pursuant to Sentencing Guideline § 2L1.2(b)(1)(D) (“If the defendant


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-50125     Document: 00512828545      Page: 2    Date Filed: 11/06/2014


                                  No. 14-50125

previously was deported, or unlawfully remained in the United States, after a
conviction for any other felony, increase by 4 levels”.).
      Mendez claims the district court “double-counted”, and perhaps even
“triple-counted”, his 2011 illegal reentry conviction, rendering his above-
Guidelines sentence procedurally and substantively unreasonable. He also
contends the district court did not give adequate mitigating weight to his
ultimately dropped 2010 sexual-assault charge, the nonviolent nature of his
prior immigration offense, and his acceptance of responsibility, which Mendez
claims demonstrates he will not return to the United States. (Other than as
contained in the above-stated issues, Mendez does not challenge the imposition
of an upward variance.)
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Mendez did not raise these issues in district court, however; therefore,
review is only for plain error. E.g., United States v. Peltier, 505 F.3d 389, 392
(5th Cir. 2007). Under that standard, Mendez must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id. As discussed below, there is no clear
or obvious error.



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                                 No. 14-50125

      Mendez concedes our precedent forecloses his assertion that Guideline
§ 2L1.2 effectively double-counts his prior conviction. E.g., United States v.
Duarte, 569 F.3d 528, 529 (5th Cir. 2009). He raises the issue only to preserve
it for possible further review. And, our court has also previously rejected the
claim that the Guidelines overstate the seriousness of illegal reentry. E.g.,
United States v. Aguirre-Villa, 460 F.3d 681, 682–83 (5th Cir. 2006).
      Further, Mendez has not shown the district court: failed to consider a
factor that should have received significant weight, gave significant weight to
an irrelevant or improper factor, or clearly erred in balancing the 18 U.S.C.
§ 3553(a) factors. E.g., Peltier, 505 F.3d at 392–94; see also United States v.
Brantley, 537 F.3d 347, 349–50 (5th Cir. 2008). The district court stated,
during sentencing, that it could take Mendez’ sexual-assault charge “into
account”, but then subsequently clarified this statement. The court explained
Mendez’ sexual-assault arrest rebutted his assertion he had stayed out of legal
trouble since 2005 because his 2010 sexual-assault charge drew the attention
of federal authorities and led to his 2011 illegal-reentry conviction. The record
does not reflect that the court considered the sexual-assault charge as an
aggravating factor when determining Mendez’ sentence. Cf. United States v.
Johnson, 648 F.3d 273, 278 (5th Cir. 2011).         Moreover, the presentence
investigation report clarified that the charge, which was not scored when the
probation officer calculated Mendez’ criminal history, was ultimately dropped.
      AFFIRMED.




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