     Case: 17-40984       Document: 00514558320         Page: 1     Date Filed: 07/17/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                     No. 17-40984                          FILED
                                   Summary Calendar                    July 17, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MARGARITO QUINTERO-ROSALES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CR-62-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Margarito Quintero-Rosales appeals his sentence of two years’
imprisonment for illegal reentry, in violation of 8 U.S.C. § 1326(a). He claims
the district court abused its discretion in sentencing him outside the advisory
Guidelines range to the statutory maximum term, based on his responsibility
for a 2016 fatal automobile accident in Texas in which three persons died.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-40984

      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 Sates, 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; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). 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).
      Quintero appears to be challenging the procedural reasonableness of his
sentence by asserting the court erred in allowing the surviving spouse and
mother of the automobile-accident victims to speak at the sentencing hearing
for his illegal-reentry conviction. See United States v. Mondragon-Santiago,
564 F.3d 357, 360 (5th Cir. 2009).
      Because Quintero did not object on this ground in district court, review
is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Quintero 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 error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      “No limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which
a court of the United States may receive and consider for the purpose of
imposing an appropriate sentence.” 18 U.S.C. § 3661; Pepper v. United States,
562 U.S. 476, 488–89 (2011). Accordingly, Quintero’s unsupported assertion
that the accident victims’ surviving family member should not have been

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                                  No. 17-40984

allowed to speak at sentencing is insufficient to show the court committed the
requisite clear or obvious error by allowing the allocution. E.g., Puckett, 556
U.S. at 135; Mondragon-Santiago, 564 F.3d at 360.
      Quintero also appears to be challenging the substantive reasonableness
of his sentence on the ground that it improperly gives significant weight to
irrelevant information regarding the accident and its victims. Because he
preserved this challenge at sentencing, review is for abuse of discretion.
Delgado-Martinez, 564 F.3d at 751–53. Quintero contends the accident is
irrelevant because the gravamen of his illegal-reentry offense had already been
completed at the time of the accident. This is unpersuasive, however, because
a “§ 1326 offense begins at the time the defendant illegally re-enters the
country and does not become complete unless or until the defendant is found
by [immigration authorities] in the United States”. United States v. Compian-
Torres, 712 F.3d 203, 207 (5th Cir. 2013) (internal quotation marks omitted).
Accordingly, the accident was a part of Quintero’s background and history that
the court was authorized to consider at sentencing. 18 U.S.C. §§ 3553(a)(1),
3661. In the light of the deference given to “the district court’s decision that
the § 3553(a) factors, on whole, justify the extent of the variance”, Quintero has
not shown the district court abused its discretion. United States v. Key, 599
F.3d 469, 475 (5th Cir. 2010).
      AFFIRMED.




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