Case: 11-50915   Document: 00512127687   Page: 1   Date Filed: 01/29/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                              January 29, 2013
                              No. 11-50915
                            Summary Calendar                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

VICTOR MANUEL VARELA-CASTILLO, also known as Victor Manuel Varela
Castillo,

                                         Defendant-Appellant

Cons. w/ No. 11-50926

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

VICTOR MANUEL VARELA-CASTILLO,

                                         Defendant-Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:10-CR-226-1
                          USDC No. 2:11-CR-103-1
     Case: 11-50915       Document: 00512127687         Page: 2     Date Filed: 01/29/2013

                                      No. 11-50915
                                    c/w No. 11-50926

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Victor Manuel Varela-Castillo pled guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. He was sentenced within the
Guidelines range to 37 months of imprisonment followed by three years of
supervised release. The district court also revoked Varela-Castillo’s supervised
release on a prior conviction and imposed a consecutive sentence within the
advisory range of 21 months followed by 15 months of supervised release.
Varela-Castillo now appeals.
       Varela-Castillo challenges the substantive reasonableness of his sentence
on the new conviction, arguing that his sentence should not have been imposed
consecutively to the sentence on his revocation. Varela-Castillo also contends
that consecutive sentences are per se unreasonable and that his revocation
sentence violates the prohibition against double jeopardy.                     Further, he
challenges the application of U.S.S.G. § 2L1.2 in calculating his Guidelines range
because he asserts that the guideline is not empirically based.
       Although Varela-Castillo argued for concurrent sentences, he failed to
object to the sentence imposed. Because Varela-Castillo did not object to the
reasonableness of his sentence after it was imposed, review is arguably for plain
error. See United States v. Peltier, 

, 391-92 (5th Cir. 2007); but see
United States v. Flanagan, 

, 124 (5th Cir. 1996). This court need not
determine whether plain error review is appropriate because Varela-Castillo’s
arguments fail even under the abuse-of-discretion standard of review. See
United States v. Rodriguez, 

, 525 (5th Cir. 2008).




       *
         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.

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    Case: 11-50915     Document: 00512127687      Page: 3   Date Filed: 01/29/2013

                                  No. 11-50915
                                c/w No. 11-50926

      The substantive reasonableness of a sentence is reviewed for an abuse of
discretion. Gall v. United States, 

, 51 (2007). Varela-Castillo’s
sentence was within the Guidelines range, making his sentence presumptively
reasonable. See United States v. Cooks, 

, 186 (5th Cir. 2009).
      With regard to Varela-Castillo’s arguments that the two sentences
combined to produce an unreasonable total prison term, this court has rejected
similar arguments. See United States v. Lopez-Velasquez, 

, 808-09
(5th Cir. 2008). Accordingly, the court did not err, plainly or otherwise, in
ordering consecutive sentences.
      There is no double jeopardy violation arising from the sentence. “Post-
revocation sanctions are not a separate penalty for purposes of the Double
Jeopardy clause – they are part of the penalty for the original offense.” United
States v. Jackson, 

, 371 (5th Cir. 2009).       Additionally, Varela-
Castillo’s argument challenging the application of Section 2L1.2 has been
consistently rejected. See United States v. Rodriguez, 

, 232-33 (5th
Cir. 2011); United States v. Duarte, 

, 529-30 (5th Cir. 2009).
      Varela-Castillo also challenges his revocation sentence. He argues the
district court plainly erred in combining the revocation proceeding with the
sentencing on the new offense, relying on prohibited sentencing factors of 18
U.S.C. § 3553(a)(2)(A) when it imposed his revocation sentence, and by failing
to articulate reasons for rejecting his mitigation arguments.
      Because no objections were made at the revocation hearing, our review of
the revocation sentence is limited to plain error. See United States v. Whitelaw,

, 259-60 (5th Cir. 2009). Plain error requires there be a forfeited
error that is clear or obvious and that affects the defendant’s substantial rights.
Puckett v. United States, 

, 135 (2009). If such a showing is made,
we have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.

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    Case: 11-50915     Document: 00512127687      Page: 4   Date Filed: 01/29/2013

                                   No. 11-50915
                                 c/w No. 11-50926

      Varela-Castillo acknowledges that he was unable to locate any authority
for his assertion that the district court erred by conducting the sentencing
hearing and the revocation hearing during the same proceeding. Therefore, he
cannot establish that the court committed clear or obvious error. Accordingly,
he fails to establish plain error resulting from conducting the proceedings
together. See id.; see also United States v. Rodriguez-Parra, 

, 231
(5th Cir. 2009) (explaining that an error is plain where it is “clear or obvious
rather than subject to reasonable dispute”).
      Even if we assume the district court relied on an impermissible sentencing
factor when imposing the revocation sentence, Varela-Castillo has not shown
that such error affected his substantial rights. That is because the district court
also relied on permissible 18 U.S.C. § 3553(a)(2) sentencing factors when
imposing the revocation sentence, and the record does not unambiguously
indicate that, absent any such error, his revocation sentence would have been
less. See United States v. Miller, 

, 844 (5th Cir. 2011).
      Varela-Castillo’s claim that the district court failed to provide adequate
reasons for rejecting his mitigating arguments is not supported by the record.
We disagree, as the district court provided detailed reasons for the imposition
of Varela-Castillo’s sentence.
      Accordingly, the judgments of the district court are AFFIRMED.




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