     Case: 16-40847       Document: 00513866639         Page: 1     Date Filed: 02/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                             United States Court of Appeals

                                     No. 16-40847
                                                                                      Fifth Circuit

                                                                                    FILED
                                   Summary Calendar                          February 7, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                  Plaintiff - Appellee

v.

JUAN JOSE PINEDA-GARCIA, true name Marco Antonio Torres-Palacios,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:15-CR-966-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Marco Antonio Torres-Palacios pleaded guilty to illegal reentry following
deportation, in violation of 8 U.S.C. § 1326(a), (b)(2).               The district court
imposed, inter alia, a within-guidelines sentence of 57-months’ imprisonment.
Torres contends the court committed a procedural error when it failed to
recognize its authority to grant a downward variance based on then-pending
amendments to Guideline § 2L1.2.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-40847

      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51.
      The parties dispute whether Torres preserved the issue for appeal.
Although he objected to the denial of the requested variance, Torres did not
contend the court failed to recognize its discretion to grant a variance, as he
does now. Thus, review is only for plain error. E.g., United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Torres must show a
forfeited plain (clear or obvious) error that affected his substantial rights. E.g.,
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the
discretion to correct the reversible plain error, but should do so only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
      Torres asserts the court’s failure to appreciate its authority to grant the
requested downward variance is demonstrated by its following statement at
sentencing: “[T]he sentencing court must apply the version of the Sentencing
Guidelines effective at the time of sentencing, unless the application of that
revision had violated the Ex Post Facto Clause of the Constitution”. The court’s
statement, however, is simply an expression of the general rule that a
sentencing court must initially apply the Guidelines then in effect. See 18
U.S.C. § 3553(a)(4)(A)(ii); U.S.S.G. § 1B1.11(a); United States v. Myers, 772
F.3d 213, 218 (5th Cir. 2014); see also Gall, 552 U.S. at 49 (holding a correct
calculation of the Guidelines sentencing range is the “starting point and the
initial benchmark” for sentencing decisions).



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                                  No. 16-40847

      The record further reflects the court made an individualized
determination of the appropriate sentence in the light of the facts and
assertions presented, the advisory Guidelines sentencing range, and the
§ 3553(a) sentencing factors. See id. at 49–50. When offered the opportunity
to speak at sentencing, Torres: discussed his criminal and employment history
and his family situation; asserted the § 3553(a) objectives could be achieved
with a below-Guidelines sentence; and raised the possibility of continuing the
sentencing hearing until the proposed amendments took effect.
      Noting that “these cases are difficult”, the court then referenced Torres’
criminal history and its prior ruling regarding the applicable Guidelines before
finally eliminating the possibility of a downward variance, declaring that “the
[c]ourt will sentence pursuant to the Guidelines as they exist today”.
Moreover, in pronouncing Torres’ within-Guidelines sentence, the court stated
it was acting “[p]ursuant to the Sentencing Reform Act of 1984, as modified by
the case of United States v. Booker, [543 U.S. 220 (2005)]”.
      As Torres acknowledges, Booker rendered the Guidelines merely
advisory. See 543 U.S. at 226–27, 245. By citing Booker in imposing the
sentence, the district court evinced its understanding of the Guidelines’
advisory nature. Torres has failed to establish plain error, as it is not clear or
obvious the court erroneously believed it lacked the authority to grant a
downward variance based on the proposed amendments to § 2L1.2. See United
States v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012).
      AFFIRMED.




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