     Case: 14-10815       Document: 00513238585         Page: 1     Date Filed: 10/20/2015




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

                                                                                  FILED
                                                                              October 20, 2015
                                       No. 14-10815
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

GUILLERMO CAMPA-BARRERA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-13-1


Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
PER CURIAM:*
       At issue is whether Guillermo Campa-Barrera’s sentence can stand,
primarily in the light of the district court’s comments about Campa’s decision
not to allocute. Campa claims: his Fifth Amendment right to silence was
violated by the court’s consideration of his not using his opportunity for




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-10815
allocution at sentencing; and, based in part on that claimed error, his sentence
of 48 months’ imprisonment was also unreasonable. AFFIRMED.
                                        I.
      Campa, a Mexican citizen and national, pleaded guilty to illegal reentry
after removal from the United States, in violation of 8 U.S.C. § 1326(a) and
(b)(1). This offense originated with his arrest for possession of cocaine, for
which he served 75 days in jail. Just before the end of that sentence, he was
indicted for the illegal reentry that underlies this appeal.
      At sentencing, Campa’s attorney objected to the Presentence Inves-
tigation Report’s (PSR) advising an upward departure might be appropriate.
The court responded it would not consider that a recommendation, but that it
“merely put[] the Court on notice that under the circumstances of this case it
could be that an upward departure would be appropriate”.
      Campa asserted, for the first time, a downward departure based on
cultural assimilation was warranted, which the court rejected. During its
discussion, the court asked Campa’s attorney how long Campa attended school
in the United States; Campa interjected, “Ninth grade”, which he clarified,
after the court prompted him, as: “First grade to the ninth grade”. Similarly,
when the court asked the longest period Campa resided in the United States,
and Campa’s attorney repeated the question to Campa, he responded, “All my
life. I am 30 years old”. The court then asked Campa directly, “Have you never
been deported?”; Campa replied, “Yes, but before the times that I have been
deported”.
      Following this exchange, the court discussed the factors it would consider
in determining an appropriate sentence, pursuant to 18 U.S.C. § 3553(a).
Campa’s wife then spoke on his behalf in an attempt to convince the court
Campa would not return to the United States illegally: “If he is deported, he
will live in Mexico, and [our child and I] will have to follow him”.
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                                 No. 14-10815
      To support his request for a lenient sentence, Campa’s attorney noted
Campa lived in the United States for the majority of his life, and “when he
misses his daughter, sometimes that is the reason he comes back”. Attempting
to clarify this statement, the court asked the attorney Campa’s daughter’s age,
and whether it was true Campa’s “first two illegal reentries occurred in 2000
and 2005 before his daughter was ever born”. At that point, Campa interjected,
“I was already with my wife”, which his attorney confirmed.
      Finally, before imposing sentence, the district court offered Campa the
opportunity for allocution:
            Mr. Campa-Barrera, you have the right to address me
            personally at this time and present any information
            that you would like in mitigation of your sentence. In
            other words, if there is something you would like to tell
            the Court before the Court imposes sentencing, you
            may do so at this time.

Campa replied, “I have nothing to say.”
      After Campa declined to make a personal statement, the court addressed
each of the factors under 18 U.S.C. § 3553(a) to support a sentence above the
advisory sentencing range under the Sentencing Guidelines. After examining
each of the factors in turn, including Campa’s criminal history and the
disrespect he demonstrated for the laws of the United States, the court
commented on Campa’s decision not to make a personal statement when given
that opportunity:
            The other thing that the Court noticed is that Mr.
            Campa-Barrera had nothing to say to the Court, and
            that tells the Court or that indicates to the Court that
            he does not appreciate the gravity and the seriousness
            of the situation, so the Court is not in a position to
            know whether he realized how serious the offense is
            for which he has been convicted[; and there is] no
            statement by him that he intends to stay outside of the
            United States unless he comes in with the proper
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                                 No. 14-10815
            permission or authorization. The Court has no
            indication that he will remain outside the United
            States as he is required to do . . . .

Finally, the court noted the sentence protected the public from Campa’s future
offenses.
      Campa was sentenced, inter alia, to 48 months’ imprisonment, an
upward variance from the 21-to-27-months advisory sentencing range under
the Guidelines. In response, Campa’s attorney stated:
            Mr. Campa-Barrera objects to the imposition of the
            sentence that is procedurally and substantively
            unreasonable. My client sets forth various arguments
            in the PSR and put forth a witness for the Court’s
            consideration to speak on his behalf and to be
            examined by the Court, and he exercised the right to
            remain silent throughout this hearing and the Court
            having considered those factors and found grounds for
            upward departure[,] he finds [it] to be objectionable.

The court overruled the objection, stating reasons why the sentence was
reasonable, fair, and just under the circumstances.
      In the subsequent written judgment was a statement of reasons (SOR)
justifying Campa’s sentence. The SOR provided in pertinent part:
            The court believes a Guideline sentence would not be
            fair, just, and reasonable considering the history of
            Defendant Campa-Barrera. He has been removed
            from the United States four times and has illegally
            entered the country at least five times. Moreover,
            Defendant Campa-Barrera has two prior federal
            convictions for illegal reentry as well as three drug-
            related convictions. A Guideline sentence would not
            serve the purpose of deterrence, show respect for the
            law, or provide just punishment for the offense. The
            court believes Defendant’s illegal entry into this
            country five times, shows disrespect for the laws of the
            United States and for the borders of this country.
            Defendant Campa-Barrera has stated in written
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                                 No. 14-10815
            documents that he returns to this country because his
            daughter has a medical condition; however, he
            illegally reentered this country at least twice prior to
            his daughter’s birth and committed other crimes
            during that time. For all these reasons, the court
            sentenced Defendant Campa-Barrera to a term of 48
            months.

Notably absent from the SOR’s explanation of factors justifying the sentence
is any adverse inference based on Campa’s electing not to make a personal
statement at sentencing.
                                      II.
      In challenging his sentence, Campa claims it:          violates his Fifth
Amendment right to silence; and is both procedurally and substantively
unreasonable.    For the latter claim, however, he briefs only procedural
unreasonableness.
                                      A.
      In maintaining the court’s consideration of his declining to make a
personal statement before pronouncement of his sentence violates his Fifth
Amendment right to silence, Campa contends he invoked that right throughout
the hearing and by stating, “I have nothing to say” when offered allocution.
Thus, he asserts, the court improperly inferred from his reply: his lack of
remorse for the offense; his failure “to appreciate the gravity and seriousness”
of his offense; and “no indication” he would remain outside of the United States
after removal.
      Constitutional challenges to a sentence are reviewed de novo. E.g.,
United States v. Hernandez, 633 F.3d 370, 373 (5th Cir. 2011). But, as has long
been the prudential rule, federal courts avoid deciding constitutional issues
unnecessary to the determination of the parties’ rights. E.g., United States v.
Suerte, 291 F.3d 366, 368 (5th Cir. 2002). Accordingly, assuming, arguendo,

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                                 No. 14-10815
the court improperly considered Campa’s declining allocution, we next consider
whether that error was harmless.       For the reasons that follow, the same
sentence would have been imposed absent the error. See United States v.
Ibarra-Luna, 628 F.3d 712, 718 (5th Cir. 2010).
      Constitutional error is harmless if “overwhelming evidence” points to the
same result had the error not occurred. See United States v. Hasting, 461 U.S.
499, 507–09, 512 (1983). Harmless error at sentencing requires that “the
district court would have imposed the same sentence, absent the error”.
Ibarra-Luna, 628 F.3d at 718. Moreover, to disprove a constitutional challenge
to a sentence, the Government must show the error was harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967); United
States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005).
      The Government met its burden to prove, beyond a reasonable doubt,
that the assumed Fifth Amendment right-to-silence violation was not
prejudicial; that is, it did not “affect the outcome of the district court
proceedings”. Pineiro, 410 F.3d at 285. The extensive evidence supporting
Campa’s sentence, aside from any assumed unconstitutional inferences drawn
from his declining the court’s invitation for allocution, demonstrates the court
would have imposed the same sentence absent its error. See id.
      The court considered the factors pursuant to 18 U.S.C. § 3553(a), and
specifically the following portion of subpart (a)(2), to impose a sentence that,
inter alia: reflects the seriousness of the crime; promotes respect for the laws
of the United States; provides just punishment for the offense; adequately
deters future criminal conduct; and protects the public from any future crimes
by the defendant.      In addition, the court considered the nature and
circumstances of the offense and Campa’s criminal history and characteristics.
      As noted, the Guidelines advisory sentencing range was 21 to 27 months.
In addition, the PSR advised the court: “An upward departure pursuant to
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                                 No. 14-10815
USSG § 4A1.3 may be appropriate based upon [Campa’s] habitual pattern of
illegal reentry after deportation.” And, as discussed supra, in response to
Campa’s objection to that statement, the court explained it would only be taken
as notice an above-Guidelines sentence might be appropriate, rather than as a
recommendation for such a sentence.
      As the Government persuaded the court at the hearing, Campa’s
criminal conduct constitutes a clear pattern of illegality and has been ongoing
since age 16. His criminal history includes: four removals from the United
States; three felony convictions for possession of a controlled substance; a
felony conviction for illegal reentry; misdemeanor convictions for possession of
marijuana; attempted illegal reentry; and assault and resisting-arrest
convictions.
      Campa’s contentions regarding the § 3553(a) factors in his favor were
unavailing in the light of his extensive criminal history.      He claimed the
following factors negated the need for a sentence above the advisory sentencing
range: the long period of time he had intermittently resided in the United
States; the similarity of his criminal history to Americans of the same
socioeconomic background; the redundancy of imposing a sentence above the
Guidelines range; the medical condition of his seven-year-old daughter, who
lives in the United States; and deportation to Mexico, “a country he [doesn’t]
know”. Campa conceded, however, that the record was clear that: he had not
“continuously” lived in the United States, as required by the Guidelines for a
downward departure, because he had been deported several times; and he had
illegally reentered the United States twice before his daughter was born. See
U.S.S.G. § 2L1.2 cmt. n.9. The court, well within its wide discretion to consider
the evidence, found Campa’s cultural-assimilation assertion unconvincing. See
United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th Cir. 2012).


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                                No. 14-10815
      As the Government noted at sentencing, Campa’s ten-month sentence in
2008 did not deter him from future crime or cultivate in him a respect for the
laws of the United States. The court found this persuasive; it noted Campa’s
four removals meant he had illegally reentered the United States at least five
times, in violation of this Country’s laws and court orders prohibiting his
reentry. Campa’s continued illegal behavior convinced the court a sentence
within the advisory Guidelines range would not accomplish any of the goals of
the § 3553(a) sentencing factors. See 18 U.S.C. § 3553.
      Campa additionally contends the court did not take into account his
wife’s statement in imposing the above-Guidelines sentence. This claim is also
unavailing.   “District courts enjoy wide discretion in determining which
evidence to consider and to credit for sentencing purposes.” Cantu-Ramirez,
669 F.3d at 628. As discussed supra, Campa’s wife assured the court he would
not return to the United States because his family would “follow him” to
Mexico. The court, however, found the “written documentation” of Campa’s
continued illegal reentries into the country, purportedly to see his ailing
daughter in the United States, outweighed his wife’s statement. Considering
the conflicting evidence, and in the light of the court’s “thoroughly
documented” reasons for imposing the above-Guidelines sentence, the court did
not err in finding Campa’s criminal history outweighed the evidence he
presented in his defense. Gall v. United States, 552 U.S. 38, 53 (2007); see
Ibarra-Luna, 628 F.3d at 718.
      After listing all of these reasons for imposing an above-Guidelines
sentence, the court commented on Campa’s response to its invitation for
allocution, to which Campa stated, “I have nothing to say.” As quoted supra,
the court restated all of the reasons pursuant to § 3553(a) for imposing the
sentence. Thus, the record shows, beyond a reasonable doubt, the court would
have imposed the sentence based on Campa’s extensive criminal history alone,
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                                  No. 14-10815
regardless of any assumed improper inferences it made from Campa’s
declining the invitation for allocution.
      The earlier-described SOR provides further support for the court’s
justification for Campa’s sentence. We have depended on a SOR to confirm
sufficient justification for an above-Guidelines sentence in other instances. See
United States v. Candrick, 435 F. App’x 404, 406, 2011 WL 3364336, *1–2 (5th
Cir. 2011) (the court’s listing various § 3553(a) factors in the SOR supported
the variance above an advisory Guidelines sentence). We have also considered
SORs as bases for courts’ sentencing subject to statutory maximums and to the
advisory Guidelines. See United States v. Greenough, 669 F.3d 567, 572 (5th
Cir. 2012); United States v. Gonzales, 436 F.3d 560, 586–87 n.21 (5th Cir.
2006).   The SOR is instructive in this instance as well.         In it, the court
enunciated Campa’s extensive criminal history, the likelihood that he would
continue to break the laws of the United States, and his criminal conduct prior
to his daughter’s birth. Moreover, Campa did not object to the Government’s
reliance, at oral argument, upon the SOR.
                                           B.
      Regarding Campa’s maintaining his sentence was procedurally and
substantively unreasonable, the Guidelines, post-Booker, are advisory only,
and a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard. Gall, 552 U.S. at 48–
51. Nevertheless, the district court must still properly calculate the Guideline
sentencing range for use in deciding on the sentence to impose. Id. In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005).


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                                 No. 14-10815
                                       1.
      Campa contends the court procedurally erred in finding it had “no
indication” he would remain outside the United States. He claims the basis of
this factual finding, and ultimately, for his sentence, were:             “negative
inferences drawn from [his] silence”; and disregarding his wife’s statement and
his attorney’s contentions.
      The Government contends Campa’s objection to his sentence in district
court was not sufficiently specific to give notice to the court, such that he did
not preserve this claim. As quoted supra, following the imposition of his
sentence, Campa objected to it on the grounds that it was procedurally and
substantively unreasonable.     His objection, however, did not specifically
challenge the court’s finding there was “no indication [Campa would] remain
outside the United States as he is required”; but, he did inform the court of his
objection to an upward-departure recommendation in the PSR, about the
court’s implicit rejection of Campa’s wife’s statement, and that “he exercised
his right to remain silent throughout this [sentencing] hearing”.
      If Campa’s objection was not sufficient, review is only for plain error.
E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). Assuming, arguendo,
the objection was sufficient to preserve his procedural-unreasonableness claim,
it fails under the more lenient abuse-of-discretion standard. See United States
v. Lightfoot, 724 F.3d 593, 596 (5th Cir. 2013).
      A sentencing court commits procedural error, inter alia, when it bases a
sentence on erroneous facts. E.g., United States v. Gutierrez-Hernandez, 581
F.3d 251, 254 (5th Cir. 2009). Campa asserts the court based his sentence on
the erroneous finding he would not remain outside the United States. The
court’s finding, however, was not an abuse of discretion. As discussed supra,
the court considered Campa’s numerous previous offenses, which alone justify
the sentence, weighed against his objection to the PSR and his wife’s assurance
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                                 No. 14-10815
she would follow him to Mexico.           Campa’s criminal history, “thoroughly
documented” and undisputed, outweighed the evidence he presented in his
defense. Gall, 552 U.S. at 53; see Ibarra-Luna, 628 F.3d at 718. Along that
line, as discussed supra, the Government has met the beyond-the-reasonable-
doubt burden to prove Campa’s sentence would have been imposed absent the
court’s assumed error regarding Campa’s declining allocution.
                                          2.
      Although Campa objected at sentencing to the sentence also being
substantively unreasonable, that challenge is waived on appeal. He states in
his appellate brief that his sentence is substantively unreasonable; but, he
presents no assertions in support. “[A] party waives any argument that it fails
to brief on appeal”. United States v. Whitfield, 590 F.3d 325, 346 (5th Cir.
2009); see Fed. R. App. P. 28(a)(8)(A).
                                          III.
      For the foregoing reasons, the judgment is AFFIRMED.




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