United States v. Orellana

U
Case: 20-20320     Document: 00515701531         Page: 1     Date Filed: 01/11/2021




              United States Court of Appeals
                   for the Fifth Circuit                              United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                      January 11, 2021
                                  No. 20-20320                          Lyle W. Cayce
                                Summary Calendar                             Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Jose Noe Castro Orellana,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:20-CR-107-1


   Before Jolly, Elrod, and Graves, Circuit Judges.
   Per Curiam:*
          Jose Noe Castro Orellana pleaded guilty to violating 8 U.S.C.
   § 1326(a), illegal reentry by a previously deported alien, and was sentenced
   to 24 months in prison, the statutory maximum sentence. Orellana argues
   that his sentence is unreasonable, both procedurally and substantively.


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20320      Document: 00515701531          Page: 2    Date Filed: 01/11/2021




                                    No. 20-20320


          We review sentences for reasonableness, first determining whether
   the district court committed a procedural error, such as “selecting a sentence
   based on clearly erroneous facts.” Gall v. United States, 

552 U.S. 38

, 51
   (2007). Orellana contends that the district court selected his sentence based
   on its erroneous belief that he should have been charged with violating
   § 1326(b)(1), which would have subjected him to a 10-year statutory
   maximum sentence, rather than § 1326(a) and its two-year statutory
   maximum sentence. Because Orellana failed to present this argument in the
   district court, our review is for plain error. Orellana must show a forfeited
   error that is “clear or obvious” and that has “affected [his] substantial
   rights” by “affect[ing] the outcome of the district court proceedings.”
   Puckett v. United States, 

556 U.S. 129

, 135 (2009) (internal quotation marks
   and citation omitted). If he makes this showing, we have the discretion to
   remedy the error but should do so “only if the error seriously affects the
   fairness, integrity or public reputation of judicial proceedings.”

Id. (internal punctuation, quotation

marks, and citation omitted).
          Orellana has failed to show that the district court committed a clear or
   obvious error by relying on clearly erroneous facts to select the sentence. See
   

Gall, 552 U.S. at 51

. Even if the district court committed an error that was
   clear or obvious, Orellana has failed to show that the error affected his
   substantial rights because he has not shown a reasonable probability that,
   absent any reliance on its belief that Orellana should have been charged under
   § 1326(b)(1), the court would have imposed a lesser sentence. See 

Puckett, 566 U.S. at 135

; United States v. Mondragon-Santiago, 

564 F.3d 357

, 364-65
   (5th Cir. 2009). The 24-month sentence became the guidelines sentence
   because it was the statutory maximum sentence and was below the guidelines
   range of 30 to 37 months that would have otherwise applied and which had
   been correctly calculated.




                                          2
Case: 20-20320      Document: 00515701531           Page: 3   Date Filed: 01/11/2021




                                     No. 20-20320


          Because the district court did not commit a procedural error, we now
   consider whether the 24-month sentence was substantively reasonable. By
   requesting a sentence of one year and one day, Orellana preserved his
   substantive reasonableness challenge, see Holguin-Hernandez v. United States,
   

140 S. Ct. 762

, 764, 766-67 (2020), and we review for abuse of discretion. See
   United States v. Sifuentes, 

945 F.3d 865

, 868 (5th Cir. 2019), cert. denied, 

140 S. Ct. 2697

(2020). Orellana argues that the district court imposed a
   substantively unreasonable sentence because it relied too heavily on an
   erroneous belief that he could have been charged under § 1326(b)(1), but he
   has failed to overcome the presumption of reasonableness that applies to his
   within-guidelines sentence, which was based, at least implicitly, on several 18
   U.S.C. § 3553(a) factors. See United States v. Alvarado, 

691 F.3d 592

, 597 (5th
   Cir. 2012); see also 

Gall, 552 U.S. at 51

.
          The judgment of the district court is AFFIRMED.




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