     Case: 12-50523       Document: 00512199056         Page: 1     Date Filed: 04/05/2013




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

                                                                            FILED
                                     No. 12-50523                           April 5, 2013
                                   Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FREDY GEOVANY MENDEZ-ALVARADO, also known as Fredy Mendez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-3089-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Fredy Geovany Mendez-Alvarado (Mendez) appeals
the sentence imposed following his guilty plea to illegal reentry. He asserts that
the district court committed reversible procedural error when it denied his
request for a downward variance based on an erroneous understanding of the
facts attendant to his California robbery conviction.
       A sentencing court commits procedural error if it determines a sentence
based on erroneous facts. United States v. Gutierrez-Hernandez, 581 F.3d 251,
254 (5th Cir. 2009). We review factual findings under the clear error standard


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50523     Document: 00512199056      Page: 2    Date Filed: 04/05/2013

                                  No. 12-50523

when the findings have been challenged in the district court. Id. Although
Mendez did not specifically object to the district court’s denial of his request for
a downward variance on the basis that the district court committed a factual
error, there were some discussions between defense counsel and the court about
this issue. We need not decide whether it was preserved, however, because the
outcome is the same even under the clearly erroneous standard which is more
favorable to Mendez. See United States v. Fernandez, 559 F.3d 303, 330 (5th
Cir. 2009).    A factual finding is not clearly erroneous “as long as the
determination is plausible in light of the record as a whole.” United States v.
Ismoila, 100 F.3d 380, 396 (5th Cir. 1996) (internal quotation marks and citation
omitted).
      Mendez claims that the district court erroneously believed that a
California criminal complaint charged him with committing two robberies, one
of which involved a knife. The presentence report states that, in addition to that
criminal complaint, Mendez had also been charged in a separate charging
instrument with two other robbery offenses which were dismissed as a result of
his plea to the robbery used to enhance his sentence in the instant case.
Consequently, the court’s statement that Mendez had “several” California
robberies that were dismissed on the basis of his having pleaded “to this one” is
consistent with the information found in the presentence report. When the
district court’s comments are read in the context of the record as a whole, it is
clear that the court understood that the three-count criminal complaint charged
individuals other than Mendez with a robbery that involved the use of a knife.
Mendez’s speculative argument that the district court misread this criminal
complaint as charging him in more than one count because his last name was
the same as one of his co-defendants is not supported by the record. His
contention that his sentence was based on a clearly erroneous factual finding is
thus without merit.
      AFFIRMED.

                                         2
