USA v. Emigdio Otero-Mendez, No. 13-50464 (5th Cir. 2014)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 2, 2014.
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Case: 13-50464 Document: 00512486475 Page: 1 Date Filed: 01/02/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 13-50464 Summary Calendar FILED January 2, 2014 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff Appellee, v. EMIGDIO GUADALUPE OTERO-MENDEZ, Defendant Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 1:13-CR-47-1 Before WIENER, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Emigdio Guadalupe Otero-Mendez appeals the sentence imposed following the revocation of his one-year term of probation for transporting illegal aliens. The district court sentenced him to serve 10 months in prison, which was ordered to run consecutively to the sentence imposed for OteroMendez s new illegal reentry offense. On appeal, Otero-Mendez argues that the consecutive 10-month within-policy-guidelines revocation sentence was 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-50464 Document: 00512486475 Page: 2 Date Filed: 01/02/2014 No. 13-50464 substantively unreasonable because it was greater than necessary to achieve the purposes of 18 U.S.C. § 3553(a) and because it served as punishment for the new offenses that he had committed. We review revocation sentences under 18 U.S.C. § 3742(a)(4) s plainly unreasonable standard. United States v. Kippers, 685 F.3d 491, 496-97 (5th Cir. 2012). Because the 10-month revocation sentence did not exceed the 10year statutory maximum term of imprisonment and was within the applicable policy range of 4-10 months, it was a legal sentence. See 8 U.S.C. § 1324(a)(1)(B)(i); 18 U.S.C. § 3565(a)(2); U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 7B1.4, p.s. (2011); United States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997). The district court exercised its discretion to order that the revocation sentence be served consecutively to the 46-month sentence for the new illegal reentry conviction. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c), p.s. & cmt. n.3(C). Because the sentence fell within the statutory range and was in keeping with the Guidelines advice regarding concurrent or consecutive sentences, it is entitled to a presumption of reasonableness. See United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). Otero-Mendez s disagreement with the district court s weighing of the § 3553(a) factors does not demonstrate that the sentence imposed was plainly unreasonable. See Gall v. United States, 552 U.S. 38, 51-52 (2007); Kippers, 685 F.3d at 496-97. Consequently, the judgment of the district court is AFFIRMED. 2
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