     Case: 08-20673     Document: 00511103218          Page: 1    Date Filed: 05/06/2010




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

                                                  FILED
                                                                             May 6, 2010
                                     No. 08-20673
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

NORMA GONZALEZ SANCHEZ, also known as Norma Gonzalez Campos,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:03-CR-221-9


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Norma Gonzalez Sanchez appeals the sentence that she received after she
pleaded guilty to conspiracy to transport undocumented aliens. The district
court initially sentenced Sanchez below the guidelines range of imprisonment
to 33 months of imprisonment. United States v. Sanchez, 484 F.3d 803, 810 (5th
Cir. 2007), cert. granted, judgment vacated by Sanchez v. United States, 552 U.S.
1089 (2008). This court concluded that the sentence was unreasonable and
vacated it. Id. at 813. The Supreme Court granted Sanchez’s petition for a writ

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20673

of certiorari and vacated the case in light of Gall v. United States, 552 U.S. 38
(2007). Sanchez v. United States, 552 U.S. 1089 (2008). On remand, this court
concluded that the district court’s clearly erroneous factual determinations
infected the sentence and constituted significant procedural errors that
warranted vacating the sentence and remanding for resentencing. United States
v. Sanchez, 277 F. App’x 494 (5th Cir. 2008).       The district court upwardly
departed from the guidelines range of imprisonment and sentenced Sanchez to
84 months. It is this sentence that she appeals.
      Because Sanchez was sentenced after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), this court reviews her sentence for
reasonableness in light of § 3553(a). United States v. Mares, 402 F.3d 511, 519
(5th Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38, 48-51 (2007),
this court must determine whether the sentence imposed is procedurally sound,
including whether the calculation of the advisory guidelines range is reasonable,
and whether the sentence imposed is substantively reasonable.
      Sanchez argues that the upward departure was unwarranted because the
number of victims and the number of deaths were not reasonably foreseeable to
her. To support her argument, Sanchez refers this court to the acquittal of her
codefendant Rosa Maria Serrata of the charge that she caused deaths or serious
bodily injury.
      The jury’s acquittal of Serrata is inapposite because the court applies a
lesser burden of proof at sentencing than does the jury in deciding guilt or
innocence. See United States v. Rodriguez, 553 F.3d 380, 394 n.15 (2008). In
sentencing Sanchez, the district court was free to consider not just her conduct,
but could consider all reasonably foreseeable acts and omissions of others in
furtherance of the jointly taken criminal activity. See Rodriguez, 553 F.3d at
395. In light of the facts set forth in the factual basis for Sanchez’s plea, there
was sufficient evidence for the district court to find that death of the humans
riding in the trailer was foreseeable. See id.

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                                 No. 08-20673

      Sanchez argues that the district court procedurally erred when it applied
U.S.S.G. § 5K2.0 to upwardly depart. Because Sanchez did not make this
argument the district court, we review it for plain error. See United States v.
Neal, 578 F.3d 270, 272 (5th Cir. 2009); F ED. R. C RIM. P. 51(b).
      To show plain error, Sanchez must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009); United States v. Baker, 538 F.3d 324, 332 (5th Cir.
2008), cert. denied, 129 S. Ct. 962 (2009). Even then, this court has discretion
whether to correct such an error and, generally, will do so only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Baker,
538 F.3d at 332.
      Section § 5K2.0 authorizes upward departures when “an aggravating . . .
circumstance . . . of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines that,
in order to advance the objectives set forth in 18 U.S.C. § 3553(a)(2), should
result in a sentence different from that described.” § 5K2.0(a)(1)(A); see also
§ 3553(b)(1). The Guidelines list “Death” as such an aggravating circumstance.
§ 5K2.1. Although the § 2L1.1 enhancements account for risk of injury and
death, they do not account for multiple victims. Accordingly, Sanchez fails to
show that the district court’s use of §5K2.0 to depart upwardly was plain error.
See, United States v. Rajwani, 476 F.3d 243, 248-50 (5th Cir. 2007), modified on
other grounds, 479 F.3d 904 (5th Cir. 2007); United States v. Saldana, 427 F.3d
298, 311 (2005).
      Sanchez also challenges the substantive reasonableness of her sentence.
She argues that the § 3553(a)(2) sentencing factors were not advanced by the
upward departure.      Substantive reasonableness review, in the context of a
guidelines departure, requires this court to evaluate both “the district court’s
decision to depart upwardly and the extent of that departure for abuse of
discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)

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(internal quotation marks and citation omitted); see United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006) (noting that a sentence that includes an upward
departure as authorized by the Guidelines is considered a guidelines sentence).
“An upward departure by a district court is not an abuse of discretion if the
court’s reasons for departing 1) advance the objectives set forth in 18 U.S.C.
§ 3553(a)(2) and 2) are justified by the facts of the case.” Id. (internal quotation
marks and citation omitted). However, “[a] district court abuses its discretion
if it departs on the basis of legally unacceptable reasons or if the degree of the
departure is unreasonable.” United States v. Simkanin, 420 F.3d 397, 416 n.21
(5th Cir. 2005) (internal quotation marks and citation omitted).
      The district court gave lengthy, detailed reasons for its departure, noting
that Sanchez found customers who had no money. The district court stated that
Sanchez’s professed regret was to be distinguished from the failure to anticipate
the hazards to which she subjected the people who died. The court’s stated
reasons for the sentence demonstrate that the court considered the § 3553(a)
factors and that its sentence was justified by the facts of the case.           See
§ 3553(a)(1)-(2), (6); Smith, 440 F.3d at 707.
      Further, the degree of the departure was not unreasonable. See Simkanin,
420 F.3d at 416 n.21. The Government recommended that the district court
depart upward from the guidelines range of imprisonment by 25 to 30 months.
In sentencing Sanchez to 84 months of imprisonment, the district court departed
upward from the guidelines range by 13 months.            Sanchez’s codefendants
received upward departures that ranged from 18 to 45 months.
      For the reasons above, Sanchez’s sentence is AFFIRMED.




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