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United States v. Botello-Zepeda

United States Court of Appeals, Fifth Circuit

August 6, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
MANUEL BOTELLO-ZEPEDA, also known as Manuel Botello, also known as Manuel Botello Zapeda, Defendant-Appellant

          Appeal from the United States District Court for the Eastern District of Texas

          Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

          LESLIE H. SOUTHWICK, CIRCUIT JUDGE:

         Manuel 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.

         We AFFIRM.

         FACTUAL AND PROCEDURAL BACKGROUND

         Manuel 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.

         The PSR 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.

         Botello-Zepeda's 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.

         Botello-Zepeda 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.

         DISCUSSION

         Botello-Zepeda 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.

         Both 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" ...


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