     Case: 11-30488     Document: 00511819172         Page: 1     Date Filed: 04/12/2012




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

                                                                            FILED
                                                                           April 12, 2012
                                     No. 11-30488
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAY A. AGUILLARD,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CR-90-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Ray A. Aguillard appeals his conviction and 240-month sentence imposed
following a guilty plea to mail fraud. He argues on appeal that his sentence is
both procedurally and substantively unreasonable, and that the government
breached the terms of the plea agreement.
        First, Aguillard argues that his sentence is procedurally unreasonable
because the district court did not provide adequate reasons to justify the
imposition of the maximum statutory sentence of 240 months or to make such

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30488

an extensive upward variance from the guidelines range of 63 to 78 months.
Because he failed to object in the district court to the adequacy of the reasons for
the sentence, our review is for plain error. See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To establish plain error, he must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, we have the discretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id. A district
court must provide legally sufficient reasons to allow for meaningful appellate
review, especially if the sentence involves an extensive variation from the
guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Key, 599 F.3d 469, 474 (5th Cir. 2010), cert. denied, 131 S. Ct. 997 (2011).
      The district court provided numerous specific reasons for its sentencing
decision—including the 18 U.S.C. § 3553(a) factors—prior to imposing the
maximum statutory punishment. It was clear from the district court’s comments
that it had determined that the case was unique in light of the devastating
financial and emotional impact on the victims and their families and that it had
concluded that Aguillard’s case fell “outside the heartland” to which the
Guidelines were intended to apply. See Kimbrough v. United States, 552 U.S. 85,
109 (2007). The district court’s detailed explanation allowed for meaningful
appellate review and does not constitute error, much less plain error. See
Puckett, 556 U.S. at 135.
      Second, Aguillard argues that his sentence is substantively unreasonable
because the aggravating factors did not justify the extent of the upward variance
and because the district court gave too much weight to factors that were already
incorporated into the guidelines calculation without giving him credit for his
acceptance of responsibility and his lack of a criminal history. He contends that
no consideration was given to the fact that he was 60 years old or to his inability
to pay restitution upon his release from prison. He also alleges that there is a

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                                  No. 11-30488

disparity between the sentence he received and the sentences imposed on similar
defendants.
      We ordinarily review the substantive reasonableness of a sentence for
abuse of discretion in light of the § 3553(a) factors. Gall v. United States, 552
U.S. 38, 51 (2007). But Aguillard did not object to the findings in the presentence
report (PSR), and he confirmed that he had no objection to the findings at
sentencing. His general objection made after his sentence was imposed may not
have been sufficient to preserve the errors he asserts on appeal. See United
States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); United States v. Dunnigan, 555
F.3d 501, 506 (5th Cir. 2009). However, we need not determine the precise
standard of review because his arguments fail even under the more favorable
abuse of discretion standard. See United States v. Ruiz-Arriaga, 565 F.3d 280,
283 (5th Cir. 2009).
      We have previously rejected Aguillard’s argument that the district court
erred in giving additional weight to factors that were already included in
calculating the guidelines range. United States v. Williams, 517 F.3d 801, 809
(5th Cir. 2008). The district court properly considered the fact that a majority of
the forty victims deceived by Aguillard were older working people who had their
entire life savings stolen from them and who were emotionally devastated by
their inability to recover their cumulative losses of nearly $4 million. Id. at 811.
Additionally, Aguillard’s age is a factor that “is not ordinarily relevant in
determining whether a departure is warranted.” See U.S.S.G. 5H1.1. Moreover,
his admission that he spent all the stolen funds makes it doubtful that he could
pay restitution no matter when he is released from prison.
      Contrary to Aguillard’s assertion, his acceptance of responsibility and lack
of criminal history were considered in determining his guidelines range, which
was significant because it was the starting point for the upward variance. See
United States v. Pizzolato, 655 F.3d 403, 410 (5th Cir. 2011), cert. denied. 132 S.
Ct. 1126 (2012). And pursuant to the Crime Victims’ Rights Act, 18 U.S.C. §

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3771, and Federal Rule of Criminal Procedure 32(i)(4)(B), the district court was
required to allow statements to be made by the victims who were present at the
sentencing hearing. Thus, Aguillard’s contention that the government’s
presentation of the victims’ testimony rendered his sentence unreasonable has
no merit.
      Additionally, Aguillard cannot show error based on the disparity in his
sentence and the sentences imposed on other defendants in similar cases
because he cannot show that the aggravating and mitigating circumstances in
those cases were not distinguishable from those present in his case. See United
States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007). The sentence imposed
was not greater than necessary to meet the goals of the § 3553(a) factors, and the
upward variance was reasonable in light of the totality of the circumstances in
this case. The 240-month sentence was substantively reasonable and did not
reflect error or an abuse of discretion on the part of the district court. See Gall,
552 U.S. at 51; Key, 599 F.3d at 475–76.
      Finally, Aguillard asserts that the government breached the plea
agreement by arguing that the statutory maximum sentence should be imposed
and by presenting the testimony of a number of victims who also requested the
statutory maximum penalty. He acknowledges that review is for plain error. See
United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005).
      The government complied with its express promises made in the plea
agreement by recommending an additional one-point reduction for Aguillard’s
acceptance of responsibility and by not filing additional criminal charges against
him. The plea agreement reflects that no other promises were made by the
government to Aguillard. The plea agreement permitted the government to take
a position at sentencing and to make a sentencing recommendation. See United
States v. Block, 660 F.2d 1086, 1090 (5th Cir. 1981). As discussed, the victims
were entitled to give a statement about the penalty to be imposed. The record



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                                 No. 11-30488

does not show any breach of the plea agreement that constitutes plain error. See
United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).
      Aguillard’s conviction and sentence are AFFIRMED.




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