Filed: Oct. 08, 2020
Latest Update: Oct. 09, 2020
Summary: Case: 18-31296 Document: 00515595171 Page: 1 Date Filed: 10/08/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 8, 2020 No. 18-31296 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Gabriel Carreto-Sanchez, also known as El Buki Carreto, Defendant—Appellant. Appeal from the United States District Court for the Eastern District of Louisiana No. 2-17-CR-73-2 Before Smith, Clement, and Oldham, Circuit Judges
Summary: Case: 18-31296 Document: 00515595171 Page: 1 Date Filed: 10/08/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 8, 2020 No. 18-31296 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Gabriel Carreto-Sanchez, also known as El Buki Carreto, Defendant—Appellant. Appeal from the United States District Court for the Eastern District of Louisiana No. 2-17-CR-73-2 Before Smith, Clement, and Oldham, Circuit Judges...
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Case: 18-31296 Document: 00515595171 Page: 1 Date Filed: 10/08/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 8, 2020
No. 18-31296
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Gabriel Carreto-Sanchez, also known as El Buki Carreto,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2-17-CR-73-2
Before Smith, Clement, and Oldham, Circuit Judges.
Per Curiam:*
I.
Gabriel Carreto-Sanchez, a removable alien, pleaded guilty of posses-
sion with intent to distribute cocaine and conspiracy to commit the same. He
faced a maximum of 40 years of imprisonment and a lifetime of supervised
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 18-31296 Document: 00515595171 Page: 2 Date Filed: 10/08/2020
No. 18-31296
release (“SR”) for each count. At the proceeding where Carreto-Sanchez
pleaded, the district court informed him that pleading guilty could carry up
to 80 years’ imprisonment. But the court neglected to explain what the maxi-
mum term of SR was and that Carreto-Sanchez could be imprisoned for vio-
lating the terms of SR.
Based on Carreto-Sanchez’s criminal history and the amount of drugs
involved in the offense, the Presentence Investigation Report (“PSR”) cal-
culated a guideline range of 37–46 months. But because the statute carried a
mandatory minimum of 60 months, and because the PSR found Carreto-
Sanchez was not eligible for the “safety valve” release from that minimum
under 18 U.S.C. § 3553(f), the PSR recommended 60 months. Carreto-
Sanchez objected. The PSR also reported that the guidelines counseled at
least four years’ SR and recommended four special conditions of SR.
At the initial sentencing hearing, the court confirmed that Carreto-
Sanchez had read and understood the PSR. Carreto-Sanchez was not sen-
tenced at that hearing, however, because the court wanted to give him more
time to share information with the government before determining whether
he qualified for the safety valve.
Two months later, the court found that Carreto-Sanchez did qualify
for the safety valve, changing the guideline range to 30–37 months. Nothing
else in the PSR changed. The court sentenced Carreto-Sanchez to
50 months—a 13-month variance—listing, as justifications, the seriousness
of the offense and Carreto-Sanchez’s continued contact with another drug
dealer regarding a co-conspirator.
The court also imposed a term of SR of four years with several discre-
tionary conditions. The court did not orally explain those conditions, though
all of them were described in the PSR, which the court adopted. Carreto-
Sanchez appeals his sentence on the grounds that (1) imposing SR was
2
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No. 18-31296
unreasonable given that he is a removable alien, and (2) the conditions of SR
that were not orally explained at sentencing are void.
II.
Carreto-Sanchez first contends that the district court erred in impos-
ing SR despite his status as a removable alien. Because Carreto-Sanchez did
not object, the parties agree we review for plain error only. United States v.
Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc).
“The court ordinarily should not impose a term of supervised release
in a case in which . . . the defendant is a deportable alien who likely will be
deported after imprisonment.” U.S.S.G. § 5D1.1(c). But we’ve ruled “[t]he
word ‘ordinarily’ is hortatory, not mandatory, in this provision.” United
States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012). Where a
court imposes SR on a removable alien, it must give a “particularized explan-
ation,” but this requirement is “not onerous.” United States v. Becerril-Pena,
714 F.3d 347, 349 (5th Cir. 2013) (internal quotation omitted). Both parties
agree the district court’s stated reasons for the sentence meet that small
burden, as do we.
What the parties disagree about is whether the court was under the
mistaken impression that it was bound by the statutory minimum term of SR
despite finding Carreto-Sanchez was eligible for the safety valve, and if so,
whether that requires remand. The only indication that the district court may
have been relying on the statutory minimum is that the term imposed—four
years—matches the statutory minimum. But four years was also the term
recommended by the guidelines after accounting for the safety valve. And in
any event, because the court imposed an upward variance, there is no reason
to believe it would’ve imposed a shorter term of SR, so any fathomable error
did not affect Carreto-Sanchez’s substantial rights. See, e.g., United States v.
Miranda-Delgado, 535 F. App’x 398, 398–99 (5th Cir. 2013) (per curiam).
3
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No. 18-31296
Therefore, there is no plain error.
III.
Carreto-Sanchez asserts that the district court erred because it “did
not specifically ask whether [he] and his counsel had read and discussed the
[PSR].” But because, at the first sentencing hearing, the court did specifi-
cally ask whether he and his counsel had read and discussed the PSR, we
disagree.
A sentencing court must “verify that the defendant reviewed the PSR
with counsel. If he has not, the sentencing should not proceed.” Diggles,
957 F.3d at 560 (citing Fed. R. Crim. P. 32(i)(1)(A)). This protects the
Fifth Amendment right to be given “notice of the sentence and an opportu-
nity to object.”
Id.
At the initial sentencing hearing on October 10, the court opened the
proceedings by asking Carreto-Sanchez whether he had “gone over the pre-
sentence report with [his] attorney.” He answered “Yes” and confirmed
that it had “been translated to” him. The court then orally adopted the PSR
at the sentencing hearing on December 19. At that second hearing, the court
did not re-confirm that Carreto-Sanchez and his counsel had reviewed the
PSR. But, in the two months between hearings, the PSR did not change
materially.1
Because Carreto-Sanchez “confirm[ed] review of the PSR,” Diggles,
957 F.3d at 560, and the PSR was not materially altered thereafter, the district
court was not required to re-confirm his review before orally adopting it.
Carreto-Sanchez had notice of the sentence and issued several objections to
1
On December 12, an addendum was added to the PSR reflecting the use of the
2018 Sentencing Guidelines, the new December 19 sentencing date, and the sentencing
dates of two of defendant’s co-conspirators. No other new information was added.
4
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No. 18-31296
it. The district court did not err.
Relatedly, Carreto-Sanchez avers that the district court erred because
it “fail[ed] to pronounce conditions of [SR] included in the written judg-
ment.” The written judgment includes four discretionary conditions, which
require Carreto-Sanchez to (1) be surrendered to custody of ICE for removal
proceedings; (2) submit to searches conducted by a probation officer;
(3) pursue educational or vocational training; and (4) maintain full-time
employment. 2 Each of those conditions appears in the PSR, which the court
orally adopted at sentencing.
“A sentencing court must pronounce conditions that are discretion-
ary . . . .” Diggles, 957 F.3d at 563. It may do so by “orally adopt[ing] a doc-
ument recommending those conditions.”
Id. Therefore, “[b]ecause the dis-
trict court adopted the conditions the PSR proposed, it pronounced the
[four] conditions it was required to . . . .”
Id. Thus, it did not err.
AFFIRMED. 3 The mandate shall issue immediately.
2
The latter three of these are implicated only if Carreto-Sanchez is not removed.
3
We requested briefing on two other issues: (1) whether Carreto-Sanchez’s plea
was knowing and voluntary given the district court’s failure to explain that he could face
SR and (2) whether the upward variance of 13 months was reasonable. The parties agree
that neither merits resentencing. First, the parties agree that the district court’s failure to
notify Carreto-Sanchez that pleading guilty could lead to SR is harmless because his worst-
case scenario of 182 months is less severe than the 960-month statutory maximum of which
the district court notified him. Second, both parties agree that the district court adequately
justified its upward variance.
5
