Filed: Feb. 22, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In The United States Court Of Appeals February 21, 2007 For The Fifth Circuit Charles R. Fulbruge III Clerk No. 05-41511 Summary Calendar UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LORENZO LUIS MAYERS-CARRILLO, Defendant - Appellant. Appeal from the United States District Court For the Southern District of Texas No. 5:05-CR-760 Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Lorenzo Luis Mayers-Carrillo appeals his 77-mo
Summary: United States Court of Appeals Fifth Circuit F I L E D In The United States Court Of Appeals February 21, 2007 For The Fifth Circuit Charles R. Fulbruge III Clerk No. 05-41511 Summary Calendar UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LORENZO LUIS MAYERS-CARRILLO, Defendant - Appellant. Appeal from the United States District Court For the Southern District of Texas No. 5:05-CR-760 Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Lorenzo Luis Mayers-Carrillo appeals his 77-mon..
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United States Court of Appeals
Fifth Circuit
F I L E D
In The United States Court Of Appeals February 21, 2007
For The Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 05-41511
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORENZO LUIS MAYERS-CARRILLO,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Texas
No. 5:05-CR-760
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Lorenzo Luis Mayers-Carrillo appeals his 77-month sentence following a guilty plea
for re-entry after deportation, in violation of 8 U.S.C. § 1326(b)(2) and 6 U.S.C. §§ 202 and
557. We affirm.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
I
Mayers-Carrillo first contends that the district court erred when it characterized his
1996 Kansas burglary conviction as a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Mayers-Carrillo properly concedes that this argument is foreclosed by
this court’s holding in United States v. Murillo-Lopez,1 but he raises it here to preserve it for
further review.
II
Mayers-Carrillo also contends that the “felony” and “aggravated felony” provisions
of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey.2
Mayers-Carrillo properly concedes that his argument is foreclosed in light of Almendarez-
Torres v. United States3 and circuit precedent,4 but he raises it here to preserve it for further
review.
III
Mayers-Carrillo next contends that the district court erred by “applying the Guidelines
1
444 F.3d 337, 344-45 (5th Cir. 2006) (holding that a California conviction for burglary
of an inhabited dwelling house was equivalent to burglary of a dwelling and therefore was
a crime of violence under the Sentencing Guidelines).
2
530 U.S. 466 (2000).
3
523 U.S. 224, 235 (1998).
4
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298
(2005).
2
[to his post-Booker5 sentence] in the same sort of mandatory fashion struck down in Booker.”
Because Mayers-Carrillo makes this argument for the first time on appeal, we review for
plain error.6 Under plain-error review, we have “a limited power to correct errors that were
forfeited because [they were] not timely raised in the district court.”7 We “may not correct
an error the defendant failed to raise in the district court unless there is (1) error, (2) that is
plain, and (3) that affects substantial rights.”8 If all of these conditions are met, we “may
then exercise [our] discretion to notice a forfeited error but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”9
Under the first two prongs, a district court commits plain error if it treats the
Guidelines as mandatory in violation of Booker.10 Booker, which was decided on January
12, 2005, excised the provision of 18 U.S.C. § 3553 “that requires sentencing courts to
impose a sentence within the applicable Guidelines range.”11 “Without the ‘mandatory’
provision, the Act nonetheless requires judges to take account of the Guidelines together with
5
United States v. Booker, 543 U.S. 220 (2005).
6
United States v. Bringier, 405 F.3d 310, 316 (5th Cir.), cert. denied,
126 S. Ct. 264 (2005).
7
United States v. Olano, 507 U.S. 725, 731 (1993).
8
United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005).
9
Id.
10
See id. at 520-21 (holding that a sentence imposed under the mandatory Sentencing
Guidelines is plain error).
11
See United States v. Booker, 543 U.S. 220, 259 (2005).
3
other sentencing goals [in § 3553(a)].”12 Mayers-Carrillo was sentenced in October 2005,
nine months after Booker was decided.
When we examine the entire sentencing record, we cannot reasonably conclude that
the district court believed that the Guidelines were mandatory or effectively treated the
Guidelines as mandatory. First, the record shows that the district court was aware that the
Guidelines were advisory after Booker. The district court, in its Statement of Reasons,
checked the box beside the statement, “The Court adopts the presentence report and
Guideline applications without change,” and the presentence report states in two different
places that the Guidelines are advisory under Booker. Also, at the top of the Sentencing
Recommendation, it states, “In light of United States v. Booker, 543 U.S. ___ (2005), the
guideline provisions listed below are advisory.”
Next, there is no indication in the record that the district court treated the Guidelines
as mandatory when it sentenced Mayers-Carrillo. At sentencing, the district court made the
following colloquy:
I’ll just tell all of you, I go back to the days when judges
were real judges and we didn’t have guidelines and looked at the
whole deal and imposed the sentence that we thought was
proper. And that’s probably what I ought to put in all of these.
I know that all of you are hard bound by all of this mumbo-
jumbo.
I don’t mean to be critical at all about what the probation
officer goes through, but my first ten years or so was in the good
old days. You know the story–I might as well lighten it just a
12
Id.
4
little bit–I said this yesterday: Things aren’t what they used to
be and they never were.
...
Mr. Mayers-Carrillo, the court faces rules of law that I
have to follow. You are going to face a serious sentence no
matter how we resolve that, but I’ll do the lowest I can under the
circumstances, recognizing that you are going to still have a
very significant amount of time for unlawful entry for a one-day
period, which is what it was.
Pursuant to the sentencing reform act of 1984, it is the
judgment of the court that the defendant Lorenzo Luis Mayers-
Carrillo is hereby sentenced to the custody of the Bureau of
Prisons to be imprisoned for a term of 77 months.
. . . [Y]our total sentence is the lowest end of the guidelines, 77
months.
...
Mr. Mayers-Carrillo, the only thing I can tell you is
you’ve gotten the lightest sentence that would be possible under
the circumstances for me still following the law.
And it’s a big stretch. I’m doing it because it is still a
significant sentence.
If you ever come back again, I don’t believe you will ever
go back to Mexico. You are going to spend all your time in the
federal penitentiary.
Mayers-Carrillo contends that the district court’s statements that “the court faces rules
of law that I have to follow . . . but I’ll do the lowest I can under the circumstances . . .” and
describing the sentence as “the lightest sentence that would be possible under the
circumstances for me still following the law” indicate that the district court treated the
5
Guidelines as mandatory. Mayers-Carrillo also argues that the fact that the district court did
not mention any of the § 3553(a) sentencing factors at the sentencing hearing shows that the
district court only considered the Guidelines when sentencing Mayers-Carrillo in violation
of Booker. In its Statement of Reasons, however, the district court stated, “The Court finds
the guidelines adequately address the sentencing factors in 18 U.S.C. § 3553(a).”
When we consider the district court’s statements at the sentencing hearing along with
its statement in the Statement of Reasons, we conclude that the district court followed the
Booker requirement that the district court must consult both the § 3553(a) sentencing factors
and the Guidelines when sentencing. Therefore, the reasonable interpretation of the district
court’s statement that it was giving “the lightest sentence that would be possible under the
circumstances for me still following the law” is that the district court was following the law
from Booker that it consult both the sentencing factors and the Guidelines.
The district court’s meaning becomes even more apparent when we examine the
circumstances surrounding Mayers-Carrillo’s conviction and sentence. Mayers-Carrillo
contends that he re-entered the United States only for a one-day period to visit his attorney
about a lawsuit and that he was planning to return to Mexico. He contends that based on his
“innocent and transitory reason” for his illegal re-entry, the district court could have
concluded that 77 months was excessive in light of many of the § 3553(a) sentencing factors
that the court must consider: “the nature and circumstances of the offense and the history
and characteristics of the defendant;” “the seriousness of the offense;” the need “to provide
just punishment for the offense;” and the need “to afford adequate deterrence to criminal
6
conduct.” Mayers-Carrillo argues that this supports his contention that the district court
treated the Guidelines as mandatory and would have sentenced him to a lower sentence if it
had treated the Guidelines as advisory and properly considered the § 3553(a) factors.
In making this argument, Mayers-Carrillo ignores how several of the § 3553(a) factors
apply to his circumstances. Section 3553(a) requires the sentencing judge to consider, inter
alia, “the history and characteristics of the defendant,” the need “to promote respect for the
law,” the need “to afford adequate deterrence to criminal conduct,” and the need “to protect
the public from further crimes of the defendant.”13 The presentence report that the district
court adopted detailed that Mayers-Carrillo had been previously arrested in the United States
at least nine times since 1980, convicted of at least twelve crimes, including four times for
illegal re-entry after deportation, and deported to Mexico after at least five of those arrests
and convictions. At the sentencing hearing, Mayers-Carrillo admitted to the district court
that he had previously been sentenced to 77 months for illegally re-entering the United
States. Therefore, the district court was aware of Mayers-Carrillo’s long history of illegally
re-entering the United States and committing crimes. A reasonable reading of the record
indicates that these are the “circumstances” to which the district court referred when it stated
that it would give Mayers-Carrillo “the lightest sentence that would be possible under the
circumstances for me still following the law.” We therefore cannot reasonably conclude that
the district court believed that the Guidelines were mandatory or effectively applied the
13
18 U.S.C. § 3553(a).
7
Guidelines as mandatory. Mayers-Carrillo has failed to establish that the district court
committed plain error.
Even if Mayers-Carrillo could establish that the district court treated the Guidelines
as mandatory, he cannot show that this error affected his substantial rights. To demonstrate
that the error affected his substantial rights, Mayers-Carrillo bears the burden of persuasion
to show “that the error ‘must have affected the outcome of the district court proceedings.’”14
Mayers-Carrillo must demonstrate “a probability sufficient to undermine the confidence in
the outcome.”15 Specifically, Mayers-Carrillo must show “that the sentencing judge would
have reached a different result had it sentenced [him] under an advisory scheme rather than
a mandatory one.”16 “Our cases have placed a substantial burden upon defendants to show
specific statements of the sentencing judge that suggest a lower sentence would be imposed
under an advisory scheme.”17 The district court’s statements in this case do not indicate that
it would have sentenced Mayers-Carrillo to a lower sentence outside of the Guideline range.
Accordingly, Mayers-Carrillo has not met his burden to show that the error affected his
substantial rights.
14
United States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005)
(quoting United States v. Olano,
507 U.S. 725, 734 (1993)).
15
United States v. Bringier, 405 F.3d 310, 317 (5th Cir. 2005), cert. denied,
126 S. Ct. 264
(2005).
16
Id.
17
United States v. Rodriguez-Gutierrez,
428 F.3d 201, 203-04 (5th Cir. 2005), cert. denied,
126 S. Ct. 1383 (2006).
8
For the foregoing reasons, we AFFIRM Mayers-Carrillo’s sentence.
9
