UNITED STATES OF AMERICA v. CARLOS ARTURO SANDOVAL (2016)

Carlos Arturo Sandoval, a native and citizen of Colombia, appeals the 57-month, within-Guidelines sentence imposed following his guilty-plea conviction of illegal reentry by a previously deported alien after a state-law, aggravated-felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). In challenging his sentence as substantively unreasonable, Sandoval contends the court should have granted his request for a sentence below the advisory sentencing range.

Because Sandoval did not raise these issues 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, Sandoval must show a forfeited plain (clear or obvious) error that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the reversible plain error, but should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.

A within-Guidelines sentence is presumed to be reasonable; the presumption is rebutted if defendant shows “the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors”. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). “[T]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant”. United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).

Sandoval's reliance on the circumstances of his reentry offense and allegedly benign motive for reentry do not show the clear or obvious error needed to rebut that presumption. E.g., United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008). The court stated it considered the § 3553(a) factors and Sandoval's contentions in support of a shorter sentence, such as his health issues, family ties, and his daughter's medical problems, and concluded a Guidelines sentence was appropriate. See, e.g., United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Re-stated, Sandoval's disagreement with his sentence is insufficient to establish plain error. See, e.g., United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

To the extent Sandoval's challenge is to procedural reasonableness, it also fails. Assuming, arguendo, such a contention was adequately briefed, the court did not fail to consider the § 3553(a) factors, as discussed supra. See e.g., Cooks, 589 F.3d at 186.

Additionally, Sandoval appears to challenge the validity of Almendarez-Torres v. United States, 523 U.S. 224 (1998), in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Nevertheless, such a challenge to an illegal-reentry conviction is “fully foreclosed from further debate”. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).

Sandoval raises a number of other issues, all of which are inadequately briefed: an appellant's brief must contain his “contentions and the reasons for them, with citations to the authorities and parts of the record on which [he] relies”, Fed. R. App. P. 28(a)(8)(A), or they are waived, see, e.g., United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).

AFFIRMED.

PER CURIAM:*