     Case: 18-40595   Document: 00515065194     Page: 1   Date Filed: 08/06/2019




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

                                                                        FILED
                                 No. 18-40595                      August 6, 2019
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                                           Plaintiff-Appellee

v.

MANUEL BOTELLO-ZEPEDA, also known as Manuel Botello, also known as
Manuel Botello Zapeda,

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Eastern District of Texas


Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Manuel Botello-Zepeda appeals the sentence imposed for his conviction
of illegal reentry into the United States. He contends that, in imposing an
upward variance at sentencing, the district court erred in considering the facts
of an unrelated case and his need for treatment for his alcoholism.
      We AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      Manuel Botello-Zepeda pled guilty without a plea agreement to illegal
reentry into the United States under 8 U.S.C. § 1326. The presentence report
(“PSR”) indicated that he had five prior adult convictions: (1) an October 2006
    Case: 18-40595    Document: 00515065194      Page: 2   Date Filed: 08/06/2019


                                  No. 18-40595

Texas conviction for driving while intoxicated (DWI), for which he was
sentenced to 180 days of confinement suspended for two years of probation, a
$1,000 fine, and 150 hours of community service; (2) an April 2012 Texas
conviction for DWI second offense, for which he was sentenced to one year of
confinement suspended for 18 months of probation, three days of confinement,
a $750 fine, and 50 hours of community service; (3) a May 2012 federal
conviction under 8 U.S.C. § 1325(a) for improper entry by an alien, for which
he was sentenced to 45 days of confinement; (4) an August 2012 federal
conviction under Section 1325(a) for improper entry by an alien, for which he
was sentenced to 80 days of confinement; and (5) a June 2017 Texas conviction
for DWI third offense, for which he was sentenced to 10 years of confinement
suspended for 10 years of probation, 90 days of confinement, a $500 fine, and
160 hours of community service.
      The PSR assessed a total of eight criminal history points, including two
points because Botello-Zepeda committed the present offense while still on
probation for his third DWI offense.       The criminal history score of eight
corresponded to a criminal history category of IV. The PSR further indicated
that Botello-Zepeda had additional arrests in December 2008 and April 2012
for being in the United States unlawfully, but that he was allowed to return
voluntarily to Mexico on both occasions. He was ordered deported in June 2012
and October 2012, following each of his prior improper-entry convictions. His
current offense was committed in August 2017.
      Botello-Zepeda’s total offense level was 12, calculated as follows: a base
offense level of eight pursuant to U.S.S.G. § 2L1.2(a); a two-level enhancement
pursuant to Section 2L1.2(b)(1)(B) because he committed the current offense
after his two prior misdemeanor convictions for improper entry; a four-level
enhancement pursuant to Section 2L1.2(b)(3)(D) because he committed the



                                       2
    Case: 18-40595    Document: 00515065194    Page: 3   Date Filed: 08/06/2019


                                No. 18-40595

current offense after the felony conviction for his third DWI; and a two-level
reduction pursuant to U.S.S.G. § 3E1.1(a) for acceptance of responsibility. The
PSR’s calculations resulted in an advisory guidelines range of 21 to 27 months’
imprisonment.
      Botello-Zepeda did not object to the PSR. The district court adopted it
without change. The district court varied upward from the Guidelines range
and sentenced Botello-Zepeda to 54 months of imprisonment, followed by three
years of supervised release as an added measure of deterrence and protection.
Botello-Zepeda objected to the upward variance, and the district court
implicitly overruled the objection. Botello-Zepeda timely appealed.


                                DISCUSSION
      Botello-Zepeda argues that the district judge “abused his discretion
when sentencing appellant to an upward variance since the district judge
relied upon information gleaned from [a] prior sentencing hearing and
testimony from an alleged victim in the prior case which was not relevant to
the offense committed by [the] appellant.” He also contends that the district
judge erred under 18 U.S.C. § 3582(a) and Tapia v. United States, 564 U.S.
319, 335 (2011), in increasing the sentence to promote rehabilitation.
      Both alleged errors stem from the court’s discussion at sentencing of the
public safety risks inherent in driving under the influence of alcohol and of
Botello-Zepeda’s alcoholism. Botello-Zepeda’s counsel first raised the topic of
his alcoholism when explaining that Botello-Zepeda’s criminal history
consisted only of immigration offenses and DWIs.          Counsel remarked,
“unfortunately, he’s in that status of being an alcoholic and he will be
sentenced more harshly because of that, because he has not learned the lesson
to not drink and drive.” The district court then asked for the Government’s



                                      3
    Case: 18-40595    Document: 00515065194     Page: 4   Date Filed: 08/06/2019


                                 No. 18-40595

position. The Assistant United States Attorney recommended a 27-month
sentence, the upper end of the Guidelines range, asserting that Botello-Zepeda
had been removed from the United States several times and was a “danger to
anyone who’s driving on the roads” given his three prior DWI convictions. The
district court and Botello-Zepeda’s counsel then engaged in the following
exchange, in which the court referred to an unrelated case and Botello-Zepeda’s
need for treatment.
      THE COURT:
      The problem the Court has is that he has a drug or he has an
      alcohol issue and he’s driving while intoxicated. And so I’ve had to
      deal with one of these cases, . . . [though] that person wasn’t
      intoxicated where somebody had a car wreck, whether he fell
      asleep or whatever, and killed somebody.
            So tell me why I shouldn’t go up and give him a harsher
      sentence than even the guidelines, that a guideline sentence is not
      appropriate in this case and that I should give him a more severe
      sentence, because he is clearly not understanding that he can’t
      drive and drink and apparently hasn’t gotten treatment.
      MR. ARRAMBIDE:
            Your Honor, the guideline sentence I believe is appropriate
      because the guidelines take into account the types of his criminal
      history.
      ....
            Hopefully now he’s learning his lesson because we are sitting
      here talking about it, talking about how serious it is and talking
      about how, but for the grace of God, he hasn’t killed anybody. And
      I think he’s very grateful for that.
      Botello-Zepeda later addressed the court. He stated that he knew he had
a problem with alcohol and that he was participating in a Narcotics
Anonymous program in detention. He also stated that he recognized he came
back to the United States illegally. He explained that he returned because it
was the only way to earn a good living for his family. He regretted his actions,


                                       4
    Case: 18-40595    Document: 00515065194      Page: 5   Date Filed: 08/06/2019


                                 No. 18-40595

had learned his lesson, would not return illegally again, and desired one last
opportunity to have a new start in life.
      The district court then imposed the sentence, stating:
            Okay. Sir, of course, the Court’s first obligation is to look at
      the guidelines and calculate those correctly, and that range is 21
      to 27 months.
            But then the Court has to figure out what is the appropriate
      sentence. Irrespective of the guidelines, what is the appropriate
      sentence. . . .
           The problem is I think, if I counted correctly, you have three
      D[W]Is. Let me make sure . . . .
             . . . So you have three D[W]Is. I have an obligation to also
      protect society. For whatever reason, you have not taken it
      seriously. You keep coming back to the United States and driving
      drunk. It’s only by the grace of God that someone hasn’t been
      killed or injured.
            And I’ve had other cases . . . where the person wasn’t driving
      drunk but for whatever reason fell asleep, was here illegally and
      people were killed. Luckily that hasn’t happened with you yet.
             But I am doing an upward variance. Because of your D[W]I
      problem and your alcohol problem, a longer sentence will help you
      get treatment to see if you can actually beat that when you get out.
      So that’s the basis, because of your three D[W]Is and to help
      protect society from your alcohol issue, I am going to increase the
      sentence and grant a variance up.
      Plain error review applies because Botello-Zepeda failed to inform the
court of the specific grounds for his objection. See United States v. Segura, 747
F.3d 323, 327 (5th Cir. 2014). To show plain error, Botello-Zepeda must first
show a forfeited error that is clear or obvious and that affects his substantial
rights.   Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016).
Botello-Zepeda has not made that showing.
      The district court’s comments referring to the other case do not show that
the court improperly considered the circumstances or statements of anyone in


                                        5
    Case: 18-40595     Document: 00515065194     Page: 6   Date Filed: 08/06/2019


                                  No. 18-40595

that case in sentencing Botello-Zepeda. Prior to the district court’s comments
about the other case, Botello-Zepeda’s counsel acknowledged that his acts of
driving while intoxicated could have resulted in the killing of another person.
The sentencing transcript as a whole reflects that the district court mentioned
the other case simply as a way to illustrate defense counsel’s point, that driving
while intoxicated or otherwise impaired had potentially deadly consequences.
      Additionally, the record shows that a concern for public safety was the
primary factor motivating the upward variance. Title 18 U.S.C. § 3582(a)
instructs sentencing courts to consider the Section 3553(a) sentencing factors
“to the extent that they are applicable, recognizing that imprisonment is not
an appropriate means of promoting correction and rehabilitation.” One of the
Section 3553(a) “[f]actors to be considered in imposing a sentence” is, of course,
“the need for the sentence imposed . . . to protect the public from further
crimes of the defendant.” § 3553(a)(2)(C).
      It is clear that “the Sentencing Reform Act precludes federal courts from
imposing or lengthening a prison term in order to promote a criminal
defendant’s rehabilitation.” Tapia, 564 U.S. at 321. The Court held that
Section “3582(a)’s prohibition on ‘promoting correction and rehabilitation’”
“prevents a sentencing court from imposing or lengthening a prison term
because the court thinks an offender will benefit from a prison treatment
program.” Id. at 333-34 (quoting § 3582(a)). The district court did no such
thing. There is nothing in the record to suggest that the court took into account
the length of any prison treatment program in determining the length of
Botello-Zepeda’s sentence.     “A court commits no error by discussing the
opportunities for rehabilitation within prison or the benefits of specific
treatment or training programs.” Id. at 334. Rehabilitation was, at most, a
secondary concern or additional justification for the 54-month prison term. See



                                        6
    Case: 18-40595    Document: 00515065194     Page: 7   Date Filed: 08/06/2019


                                 No. 18-40595

United States v. Pillault, 783 F.3d 282, 290-92 (5th Cir. 2015). Botello-Zepeda
fails to show error, plain or otherwise.
      AFFIRMED.




                                           7
