USA v. Emilio Santos-Zarate, No. 10-50659 (5th Cir. 2011)
Annotate this Case
Download PDF
Case: 10-50659 Document: 00511686195 Page: 1 Date Filed: 12/06/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-50659 Summary Calendar December 6, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. EMILIO PABLO SANTOS-ZARATE, also known as Uiliam Montoya-Diaz, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-20-1 Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM:* Emilio Pablo Santos-Zarate (Santos) appeals the sentence imposed after he pleaded guilty to illegal reentry following deportation, in violation of 8 U.S.C. § 1326. He asserts that his above-guidelines sentence is unreasonable because U.S.S.G. § 2L1.2 double counted his criminal history by using a prior conviction to increase his offense level and to calculate his criminal history score and because the district court improperly relied on his arrest record and his sophistication in committing the underlying offense. Because Santos did not * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 10-50659 Document: 00511686195 Page: 2 Date Filed: 12/06/2011 No. 10-50659 object on these bases in the district court, we review these arguments for plain error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Santos s double-counting argument is foreclosed because double counting is barred only where it is prohibited by a specific Sentencing Guideline. See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). The Guidelines expressly allow consideration of a prior conviction in both the offense level and the criminal history score. § 2L1.2, comment. (n.6) (Nov. 2009). Santos s argument that the district court improperly relied on his arrest record when imposing an above-guidelines sentence is likewise without merit because even if the district court improperly relied on Santos s arrest record, the record reflects that the district court relied on other permissible factors when imposing his sentence. See United States v. Williams, 620 F.3d 483, 496 (5th Cir. 2010), cert. denied, 131 S. Ct. 1534 (2011). Thus, Santo cannot establish with reasonable probability that he would have received a lesser sentence but for any error. See id.; see also Peltier, 505 F.3d at 392. Finally, Santos has not shown that the district court relied on his alleged sophistication in committing the underlying offense when sentencing him; thus, he has not established that the district court committed any error, plain or otherwise. See Peltier, 505 F.3d at 392. The judgment of the district court is AFFIRMED. 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
