     Case: 18-20225   Document: 00514938966   Page: 1   Date Filed: 05/01/2019




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


                              No. 18-20225
                                                                       FILED
                                                                    May 1, 2019
                            Summary Calendar
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

ERBEY ALANIS BOTELLO,

                                         Defendant-Appellant

_______________________
Consolidated with No. 18-20226

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

ERBEY BOTELLO-ALANIS, also known as Javier Garcia,

                                         Defendant-Appellant



                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 4:11-CR-870-8
                          USDC No. 4:17-CR-719-1
     Case: 18-20225      Document: 00514938966         Page: 2    Date Filed: 05/01/2019


                                     No. 18-20225
                                   c/w No. 18-20226

Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Erbey Botello-Alanis, who had been convicted previously of possession
with intent to distribute 100 kilograms or more of marijuana, pleaded true to
violating the terms of his supervised release by reentering the United States
illegally. He also pleaded guilty to the illegal reentry offense. The district
court sentenced him to 37 months of imprisonment and a three-year term of
supervised release on the illegal reentry offense and a consecutive term of eight
months of imprisonment on the supervised release revocation. Botello-Alanis
appeals the revocation of his supervised release and the sentence imposed in
the illegal reentry case.
       Botello-Alanis argues that the district court erroneously failed to verify
that he knowingly and voluntarily waived his Federal Rule of Criminal
Procedure 32.1 rights and asks that we extend the holding of Boykin v.
Alabama, 395 U.S. 238 (1969), to revocation hearings. Botello-Alanis also
argues that the district court did not specifically obtain a plea of true from him
at the revocation hearing and that such an omission violated his due process
rights.
       Because Botello-Alanis did not raise these objections at the revocation
hearing, we review for plain error only. See Puckett v. United States, 556 U.S.
129, 135 (2009). To succeed under this standard, Botello-Alanis must show a
forfeited and clear or obvious error that affects his substantial rights. See id.
If he makes this showing, we have the discretion to correct the error if it



       * 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. 18-20225
                                c/w No. 18-20226

seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      We have not addressed the issue whether Boykin is applicable to
supervised release revocation hearings. Given the lack of controlling authority
in support of Botello-Alanis’s argument and the contrary jurisprudence from
other circuits, any error by the district court with regard to failing to ascertain
the knowing and voluntary nature of the plea was not clear or obvious and,
thus, does not meet the plain error standard. See United States v. Salinas, 480
F.3d 750, 759 (5th Cir. 2007). In addition, the record belies Botello-Alanis’s
claim that the district court did not elicit a plea of true at the revocation
hearing.
      Botello-Alanis also argues that the within-guidelines sentence imposed
by the district court in the illegal reentry case was substantively unreasonable.
He explains that he came to the United States to support his children and to
escape drug cartels.    Botello-Alanis claims that the Government and the
district court ignored these facts and placed too much weight on his criminal
history. He also asserts that his previous sentence reduction should not have
been a basis for imposing a lengthy sentence in the instant case. Because
Botello-Alanis did not object to the substantive reasonableness of his sentence
at the time it was imposed, we review for plain error only. See Puckett, 556
U.S. at 135.
      A sentence within or below a properly calculated guidelines range is
entitled to a rebuttable presumption of reasonableness.         United States v.
Simpson, 796 F.3d 548, 557 (5th Cir. 2015). The presumption may be rebutted
by a showing that the sentence “(1) does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant




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                                 No. 18-20225
                               c/w No. 18-20226

or improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” Id. at 558 (internal quotation marks and citation omitted).
      The record in the instant case demonstrates that the district court made
an individualized assessment to determine whether a sentence within the
guidelines range was sufficient but not greater than necessary to achieve the
goals of 18 U.S.C. § 3553(a). Botello-Alanis has not shown that the district
court, when imposing sentence, failed to consider a significant factor,
considered an improper factor, or made a clear error of judgment in balancing
the relevant factors. See Simpson, 796 F.3d at 557-58. Therefore, Botello-
Alanis has not shown any error, plain or otherwise, with respect to the
substantive reasonableness of his sentence. See Puckett, 556 U.S. at 135.
      The judgments of the district court are AFFIRMED.




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