Filed: Oct. 08, 2020
Latest Update: Oct. 09, 2020
Summary: Case: 19-20635 Document: 00515595194 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. 19-20635 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jesus Valdez Duarte, Defendant—Appellant, consolidated with No. 19-20637 United States of America, Plaintiff—Appellee, versus Jesus Valdez Duarte, also known as Juan Jose Valdivia, Defendant—Appellant. Case: 19-20635 Document
Summary: Case: 19-20635 Document: 00515595194 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. 19-20635 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jesus Valdez Duarte, Defendant—Appellant, consolidated with No. 19-20637 United States of America, Plaintiff—Appellee, versus Jesus Valdez Duarte, also known as Juan Jose Valdivia, Defendant—Appellant. Case: 19-20635 Document:..
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Case: 19-20635 Document: 00515595194 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. 19-20635
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jesus Valdez Duarte,
Defendant—Appellant,
consolidated with
No. 19-20637
United States of America,
Plaintiff—Appellee,
versus
Jesus Valdez Duarte, also known as Juan Jose Valdivia,
Defendant—Appellant.
Case: 19-20635 Document: 00515595194 Page: 2 Date Filed: 10/08/2020
No. 19-20635
c/w No. 19-20637
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-562-1
Before Graves, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Jesus Valdez Duarte was serving terms of supervised release for two
separate cases—one involving felon-in-possession convictions; the other
involving possession of heroin while in federal prison. His supervision in
both cases was revoked for violations relating to drug use and failure to
report. The court sentenced him to 12-month prison terms in each case 1—
within the Guidelines range and well below what the government
recommended—and ordered those terms to run consecutive. In these
consolidated appeals, Duarte challenges the decision to run the terms
consecutive. He contends that the district court erred when it interpreted
Application Note 4 to U.S.S.G. § 7B1.3 as recommending consecutive
sentences in this situation.
Although Duarte objected to the consecutive nature of his sentences
on substantive reasonableness grounds, he did not object on the procedural
ground that he raises now. As a result, his claim is reviewed for plain error.
See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To succeed
*
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.
1
In the firearms case, Duarte had two separate convictions. So he received two
concurrent 12-month revocation sentences in that case. The issue on appeal is running
those sentences consecutive with the 12-month term imposed in the separate case.
2
Case: 19-20635 Document: 00515595194 Page: 3 Date Filed: 10/08/2020
No. 19-20635
c/w No. 19-20637
under this standard, Duarte must show a clear or obvious error that affects
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes this showing, we have the discretion to correct the error and should
do so if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.”
Id. (quotation and brackets omitted).
Assuming arguendo that there was plain error because Application
Note 4 is silent about whether revocation sentences in separate underlying
cases should run concurrently or consecutively, Duarte has not met his
burden of showing prejudice. See Molina-Martinez v. United States, 136 S. Ct.
1338, 1343 (2016). After the defense objected to the consecutive nature of
the sentences on the ground that the violations were “low level,” the court
recited its reasons for the sentence. First it noted that it considered the
relevant statutory factors, especially the “nature and circumstances of the
offense and the history and characteristics of the defendant,” the need to
deter, and the need “to protect the public from further crimes.” 18 U.S.C.
§§ 3553(a)(1), (a)(2)(B), (a)(2)(C). The court then “add[ed]” that it ordered
no further term of supervised release.” Next the court explained that Duarte
had “just from day one constantly failed to comply with the requirements of
supervised release,” so it had “determined that this is the appropriate
sentence, much less than, of course, [] what the government is
recommending.” In overruling the objection that it was unreasonable to
impose consecutive sentences, the court did not mention Application Note 4
as it had when first announcing the sentence. A belief that the Guidelines
recommended consecutive sentences would have been a much more direct
way to respond if that was a significant motivation for the sentence. Given
the detailed and extensive reasons the court listed to justify the
reasonableness of imposing consecutive sentences, something it certainly
had the discretion to do, see United States v. Gonzalez,
250 F.3d 923, 925-29
3
Case: 19-20635 Document: 00515595194 Page: 4 Date Filed: 10/08/2020
No. 19-20635
c/w No. 19-20637
& n.8 (5th Cir. 2001); see also 18 U.S.C. § 3584(a), Duarte has not shown a
“reasonable probability” that the sentences would have been ordered to run
concurrent were it not for the court’s earlier mention of Application Note 4.
Molina-Martinez, 136 S. Ct. at 1343.
The judgment of the district court is AFFIRMED.
4
