from the United States District Court for the Eastern
District of Texas
HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE:
Botello-Zepeda appeals the sentence imposed for his
conviction of illegal reentry into the United States. He
contends that, in imposing an upward variance at sentencing,
the district court erred in considering the facts of an
unrelated case and his need for treatment for his alcoholism.
AND PROCEDURAL BACKGROUND
Botello-Zepeda pled guilty without a plea agreement to
illegal reentry into the United States under 8 U.S.C. §
1326. The presentence report ("PSR") indicated that
he had five prior adult convictions: (1) an October 2006
Texas conviction for driving while intoxicated (DWI), for
which he was sentenced to 180 days of confinement suspended
for two years of probation, a $1, 000 fine, and 150 hours of
community service; (2) an April 2012 Texas conviction for DWI
second offense, for which he was sentenced to one year of
confinement suspended for 18 months of probation, three days
of confinement, a $750 fine, and 50 hours of community
service; (3) a May 2012 federal conviction under 8 U.S.C.
§ 1325(a) for improper entry by an alien, for which he
was sentenced to 45 days of confinement; (4) an August 2012
federal conviction under Section 1325(a) for improper entry
by an alien, for which he was sentenced to 80 days of
confinement; and (5) a June 2017 Texas conviction for DWI
third offense, for which he was sentenced to 10 years of
confinement suspended for 10 years of probation, 90 days of
confinement, a $500 fine, and 160 hours of community service.
assessed a total of eight criminal history points, including
two points because Botello-Zepeda committed the present
offense while still on probation for his third DWI offense.
The criminal history score of eight corresponded to a
criminal history category of IV. The PSR further indicated
that Botello-Zepeda had additional arrests in December 2008
and April 2012 for being in the United States unlawfully, but
that he was allowed to return voluntarily to Mexico on both
occasions. He was ordered deported in June 2012 and October
2012, following each of his prior improper-entry convictions.
His current offense was committed in August 2017.
total offense level was 12, calculated as follows: a base
offense level of eight pursuant to U.S.S.G. § 2L1.2(a);
a two-level enhancement pursuant to Section 2L1.2(b)(1)(B)
because he committed the current offense after his two prior
misdemeanor convictions for improper entry; a four-level
enhancement pursuant to Section 2L1.2(b)(3)(D) because he
committed the current offense after the felony conviction for
his third DWI; and a two-level reduction pursuant to U.S.S.G.
§ 3E1.1(a) for acceptance of responsibility. The
PSR's calculations resulted in an advisory guidelines
range of 21 to 27 months' imprisonment.
did not object to the PSR. The district court adopted it
without change. The district court varied upward from the
Guidelines range and sentenced Botello-Zepeda to 54 months of
imprisonment, followed by three years of supervised release
as an added measure of deterrence and protection.
Botello-Zepeda objected to the upward variance, and the
district court implicitly overruled the objection.
Botello-Zepeda timely appealed.
argues that the district judge "abused his discretion
when sentencing appellant to an upward variance since the
district judge relied upon information gleaned from [a] prior
sentencing hearing and testimony from an alleged victim in
the prior case which was not relevant to the offense
committed by [the] appellant." He also contends that the
district judge erred under 18 U.S.C. § 3582(a) and
Tapia v. United States, 564 U.S. 319, 335 (2011), in
increasing the sentence to promote rehabilitation.
alleged errors stem from the court's discussion at
sentencing of the public safety risks inherent in driving
under the influence of alcohol and of Botello-Zepeda's
alcoholism. Botello-Zepeda's counsel first raised the
topic of his alcoholism when explaining that
Botello-Zepeda's criminal history consisted only of
immigration offenses and DWIs. Counsel remarked,
"unfortunately, he's in that status of being an
alcoholic and he will be sentenced more harshly because of
that, because he has not learned the lesson to not drink and
drive." The district court then asked for the
Government's position. The Assistant United States
Attorney recommended a 27-month sentence, the upper end of
the Guidelines range, asserting that Botello-Zepeda had been
removed from the United States several times and was a
"danger to anyone who's driving on the roads"