United States v. Mendoza

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50336
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VICTOR MENDOZA,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:10-CR-343-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Victor Mendoza challenges the 36-month sentence of imprisonment
imposed following the revocation of his term of supervised release for his 2011
conviction for possessing with intent to distribute a mixture and substance
containing heroin within 1,000 feet of a school. He contends that the district
court failed to adequately explain its revocation sentence, which exceeded the
range provided in the policy statements of the Sentencing Guidelines.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 17, 2020

Lyle W. Cayce
Clerk
Case: 19-50336 Document: 00515347210 Page: 1 Date Filed: 03/17/2020

No. 19-50336
2
Because this claim of procedural error was not raised in the district
court, we review it only for plain error. See United States v. Kippers, 685 F.3d
491, 497 (5th Cir. 2012). To establish plain error, Mendoza must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes this
showing, we have the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Mendoza is unable to make such a showing. Specifically, he has not
established that any deficiency in the district court’s explanation affected his
substantial rights, as he has not shown that a more detailed explanation would
have resulted in a different sentence. See United States v. Whitelaw, 580 F.3d
256, 262-63 (5th Cir. 2009). Indeed, Mendoza requested that the district court
impose the 36-month sentence. And the district court followed the Guidelines
in ordering that the sentence run consecutively to any state sentence he was
serving. See U.S.S.G. § 7B1.3(f). Thus, he has not demonstrated that the
district court’s explanation for the sentence was so insufficient as to rise to the
level of reversible plain error. See Puckett, 556 U.S. at 135.
AFFIRMED.
Case: 19-50336 Document: 00515347210 Page: 2 Date Filed: 03/17/2020