IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40812

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

LUIS EDUARDO ALVAREZ,

Defendant – Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:11-CR-425

Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Luis Eduardo Alvarez, resentenced following a remand by this court, 

again appeals his sentence for conspiracy to possess with intent to distribute 

more than five kilograms of cocaine and possession of a firearm in furtherance 

of a drug trafficking offense. We AFFIRM. 

FACTUAL AND PROCEDURAL BACKGROUND

In January 2011, Special Agents Andres Rivas and Mike Weddel of the 

Bureau of Alcohol, Tobacco, and Firearms (ATF) were in Laredo, Texas 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2014

Lyle W. Cayce

Clerk

 

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investigating Mark Anthony Milan, an illegal weapons dealer and one of 

defendant-appellant Alvarez’s codefendants. Agent Rivas, working 

undercover, met Milan through a confidential informant (“CI”) and attempted 

to reach an agreement to purchase ten to twelve automatic rifles from Milan. 

The controlled purchase failed when Agent Rivas aborted the transaction, 

seeking to avoid raising Milan’s suspicions and fearing that Milan might 

attempt to rob him of the weapons. Thereafter, Agent Rivas showed Agent 

Weddel a photograph of Milan that he discovered while checking the license 

plate of the vehicle Milan was driving. Agent Weddel recognized Milan as 

someone he had previously investigated for armed robbery and assault on a 

residence in Laredo. According to the Government, such crimes are common 

but usually go unreported to local police. 

Due to his belief that Milan was predisposed to violent, armed home 

invasions, Agent Weddel devised a plan to stage a home invasion and propose 

to Milan that he participate in it. On February 10, 2011, Agent Weddel met 

with a CI, Milan, and Cristobal Cervantes, another codefendant, at a 

Whataburger restaurant to discuss the details of the planned raid. Agent 

Weddel explained to Milan and Cervantes that he was a member of a drugtrafficking organization and was being cheated out of his rightful share of the 

organization’s income. He explained that his organization would be placing 25 

kilograms of cocaine in a stash house in Laredo and wanted those at the 

meeting to help him steal it. He further explained that there would be two 

men guarding the house, at least one of them large, ill-tempered, and heavily

armed. To improve the attractiveness of the proposal to Milan and Cervantes, 

Weddel told them that he only wanted five kilograms of cocaine for himself and 

they could have whatever else was left, but probably no less than twenty 

kilograms. (There never were any drugs nor was there an actual stash house 

that would be used for this operation.)

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On March 9, 2011, Agent Weddel placed a phone call to Milan to inform 

him that the drugs had arrived at the stash house. Milan, Cervantes, Alvarez, 

and a fourth codefendant, Michael Porras, met Weddel at a Walgreens store, 

where the entire group, including a CI, drove in a caravan to a storage facility 

to pick up another vehicle. Upon arrival, Agent Weddel exited his vehicle, as 

did Milan and Cervantes. Agent Weddel then insisted upon meeting Alvarez 

and Porras, whom he had never met. Over the next few minutes, the four 

explained to Agent Weddel that they were “ready”; Cervantes took a Glock 

pistol from the center console of his vehicle and placed it in his waistband;

Porras showed him a bag which contained two rifles; and Alvarez stated “I’m 

gonna go in first” and “we’re not rookies.” Moments later, Agent Weddel 

stepped away from the others while talking on his cellular phone. At that 

point, law enforcement officers descended on the gathering and arrested the 

four codefendants.

In June 2011, a grand jury returned a six-count indictment against the 

four men. Count One charged a conspiracy to possess with intent to distribute 

more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846. Count Six charged possession of firearms in furtherance 

of the drug conspiracy count in violation of 18 U.S.C. § 924(c)(1)(A). After a 

three-day trial, the jury convicted Alvarez of Counts One and Six. 

In the original Presentence Report (“PSR”), Alvarez’s base offense level 

for Count One was 34. He received a two-level increase for possessing a 

dangerous weapon and a four-level increase for wearing a bulletproof vest 

during the sting. With a total offense level of 40 and a criminal history 

category of I, his Guideline range was 292-365 months imprisonment. The 

district court sentenced him to 292 months on Count One and to a mandatory 

60-month term for Count Six, to run consecutively. Alvarez appealed his 

conviction and sentence. 

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Alvarez’s appeal included an objection to the two-level enhancement for 

possession of a firearm during the offense. We vacated his sentence on that 

ground. United States v. Cervantes, 706 F.3d 603, 620 (5th Cir. 2013). We held 

that the firearm enhancement “impermissibly punishes a defendant twice for 

the same conduct if it is levied in conjunction with a sentence for violating 

[Section 924].” Id. We concluded the district court had plainly erred, vacated

the sentence, and remanded for resentencing. Id. 

On remand, the probation office’s sole revision to the PSR was to remove

the two-level firearm enhancement. His new total offense level was 38 and his 

new Guidelines range was 235-293 months. Alvarez, represented by new 

counsel, brought five new objections to the PSR that were not raised at his 

original sentencing. These were: (1) that he did not make the statements 

attributed to him by Agent Weddel and relied upon in sentencing him, (2) that 

the PSR incorrectly concluded that he intended to steal from the 25 kilograms 

of cocaine, (3) that the drug quantity had been entirely fabricated by the 

Government, (4) that the body armor enhancement was improper because he 

was induced to wear it by Agent Weddel’s admonitions about the dangerous, 

armed guards at the stash house, and (5) that he should have been given a 

minor participant reduction because he did not meet with Agent Weddel, 

Milan, and Cervantes at the Whataburger. He further requested a downward 

departure or variance based on imperfect entrapment or sentencing 

entrapment, requested the same for family responsibilities, and finally 

requested a non-Guideline sentence under 18 U.S.C. § 3553(a). As we will 

discuss, we conclude that the five enumerated new objections were properly 

held to be foreclosed. We will also discuss why the district court could and did 

consider a departure or variance based on family responsibilities.

The district court stated that the remand was limited to removing the 

two-level firearms enhancement. Nonetheless, the district court permitted 

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Alvarez’s attorney to argue all of his substantive objections as “mitigation . . . 

that would go to the overall sentence that the Court imposes.” The district 

court again sentenced him to 235 months on Count One and to the 60-month 

mandatory consecutive term on Count Six. This constituted the lowest 

sentence in the Guidelines range, as calculated in the revised PSR. On appeal, 

Alvarez argues that the district court erred by limiting the scope of the remand 

to removing the two-level firearm enhancement, that the district court should 

have granted his specific objections, and that the district court failed to 

adequately consider the Section 3553 sentencing factors. 

DISCUSSION

This court reviews a district court’s interpretation of a remand order de 

novo. United States v. Pineiro, 470 F.3d 200, 204 (5th Cir. 2006). Review of 

the substantive reasonableness of a sentence pursuant to Section 3553 is for 

abuse of discretion; a within-Guidelines sentence is presumptively reasonable. 

United States v. Alvarado, 691 F.3d 592, 596 (5th Cir. 2012). That 

“presumption is rebutted only upon a showing that the sentence does not 

account for a factor that should receive significant weight, it gives significant 

weight to an irrelevant or improper factor, or it represents a clear error of 

judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 

173, 186 (5th Cir. 2009) (citation omitted). Where “the term of imprisonment 

is not lengthened by a district court’s consideration of an impermissible factor 

. . . reversal is not required.” United States v. Teel, 691 F.3d 578, 587 (5th Cir. 

2012). In our abuse-of-discretion review, this court will not reweigh the Section 

3553 factors. See Gall v. United States, 552 U.S. 38, 51 (2007).

In Alvarez’s first appeal, this court concluded: “For the foregoing reasons, 

the sentences of Alvarez and Cervantes are VACATED and REMANDED for 

resentencing. We AFFIRM Appellants’ convictions and sentences on all other 

grounds.” Cervantes, 706 F.3d at 621. The district court, on remand, stated 

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“the only issue is the gun enhancement and the other issues, the Court 

believes, are foreclosed.” The court also indicated that it would consider some 

of Alvarez’s arguments for purposes of mitigation, and for whether a variance 

or departure should be granted, as we explain later.

Alvarez argues that the district court should have conducted a full, de 

novo sentencing and considered all of the new objections his new counsel 

raised. The Government counters that all but one of Alvarez’s new arguments 

presented at the resentencing “were waived when he failed to raise them at his 

initial sentencing and in his first appeal.” 

This circuit has previously disagreed with those courts that have held 

“resentencing hearings following a remand are to be conducted de novo unless 

expressly limited by the court in its order of remand.” United States v. 

Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). We take the minority view, 

shared by the D.C. and Seventh Circuits. See id. (citing United States v. 

Whren, 111 F.3d 956 (D.C. Cir. 1997); United States v. Parker, 101 F.3d 527 

(7th Cir. 1996)). “The only issues on remand properly before the district court 

are those issues arising out of the correction of the sentence ordered by this 

court.” Marmolejo, 139 F.3d at 531. “All other issues not arising out of this 

court's ruling and not raised before the appeals court, which could have been 

brought in the original appeal, are not proper for reconsideration by the district 

court below.” Id. (emphasis added). Alvarez refers us to a decision where we 

stated: “if we had intended only a ministerial resentencing, we could have 

reversed and rendered” the appropriate sentence. United States v. Matthews, 

312 F.3d 652, 660 (5th Cir. 2002). We made that statement because our first 

decision had required on remand an entire reconsideration of the sentence for 

one count in light of errors made in the original sentencing; consequently, the 

resentencing was de novo. Id. at 659-60. In addition, the case involved an 

intervening Supreme Court decision that recognized the validity of an 

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argument similar to one the defendant had made in his first appeal, but which 

we had rejected. Id. at 657 (discussing Apprendi v. New Jersey, 530 U.S. 466

(2000)).

The Matthews circumstances do not exist here. The general rule applies, 

that de novo resentencing is improper following a remand for correction of a 

specific and defined sentencing error. The district court’s interpretation of our

remand was correct. Consequently we will not consider Alvarez’s objections to 

his PSR and Guidelines calculations that could have been made at the time of 

his original sentencing but were not. 

We distinguish whether Alvarez had shown grounds for a departure or 

variance from our rulings about whether the objections were new. Alvarez 

asserts that after his initial sentencing, his wife left the home where their 

children lived, leaving Alvarez’s parents responsible for the children. He 

argues the district court erred in concluding that it could not consider the new 

family circumstances. Specifically, Alvarez sought a downward departure 

under Section 5H1.6 of the Guidelines due to family responsibilities. That 

section applies only where there are “unique or extraordinary circumstances.” 

United States v. Brown, 29 F.3d 953, 961 (5th Cir. 1994). In Brown, this court 

concluded that the mere disruption of parental relationships during a parent’s 

incarceration is not extraordinary for the purposes of the Guideline. Id. 

Alvarez suggests that it is extraordinary that his children will be in the sole 

care of his parents instead of his wife. 

The initial difficulty with Alvarez’s argument is determining whether 

there is sufficient factual support for it. We find no explicit evidence or even 

argument presented at the time of resentencing, that Alvarez’s wife was taking 

care of the children at the time of his original sentencing, but thereafter left 

his parents’ home and was no longer caring for the children. Both the 2011 

PSR and the amended one in 2013 state that Alvarez’s common-law wife 

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resided with the children at the home of Alvarez’s parents, but neither PSR 

makes any assertions about her parenting abilities or whether she, or the 

grandparents alone, or all of them were caring for the children. No objection 

was made in 2011 to the statements in the PSR. 

In 2013, among the written objections filed by Alvarez’s new counsel to 

the PSR was that “Alvarez’s wife cannot care for the children”; “his commonlaw wife currently resides with another individual while his children reside 

with his parents”; Alvarez’s parents have cared for his children since the date 

of his incarceration”; the children “are being cared for by his parents because 

their mother is not an adequate care taker”; and the children have been 

“without the care, love and assistance of their mother for over 24 months since

she is not an adequate care taker . . . .” These assertions ignore whether the 

children’s mother previously had been an adequate caregiver but lost interest 

or capacity after Alvarez was incarcerated, or whether the mother even prior 

to Alvarez’s first sentencing had not been responsible for the care of her 

children. Alvarez’s counsel at the second sentencing hearing said that the 

defendant’s parents had been caring for the children because “their mother has 

not been able to” do so, but he never alleged that was a change from the 

situation at the time of the first sentencing.

The district judge at least partially noted this ambiguity. At the hearing 

after the remand, though making a point as to a different sentencing decision, 

the court said it did not recall from the first sentencing “whether the issue 

about the mother not being able to care for the children was even a factor” in 

making a recommendation as to where Alvarez would be imprisoned. The 

court also concluded that there was nothing clearly new about the facts being 

presented about the children:

But all of the things that Mr. Vela [Alvarez’s counsel] 

touches on are the things that were before the Court originally. 

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You know, perhaps there’s a little bit of a difference in the fact that 

your parents are taking care of your children now when maybe 

that wasn’t necessarily pointed out at the time. Perhaps there’s 

some difference in how he argues some of the things that are in the 

report already, but everything that he touches on was before the 

Court originally and was considered by the Court.

Even if the children’s mother not being an adequate caregiver and 

leaving the home where the children lived were new factual matters arising 

after the first sentencing hearing, the district court did not refuse to consider 

those facts in setting the sentence. Counsel’s written objections to the PSR’s 

statements about the family situation were in a section entitled “Request for 

Downward Departure and/or Variance”; the district court stated that it would 

consider the arguments for just those purposes:

And then just so that we’re clear, I’m not disregarding the 

arguments that you have made, Mr. Vela. The Court believes that 

they are proper arguments to make in considering whether a 

variance should be made or even a departure should be made. So, 

the Court has given them due weight, but the Court believes that 

a sentence within the guideline range as to each one of these cases 

is necessary.

More generally, the court said it would consider all of Alvarez’s 

arguments in order to analyze mitigation:

The Court obviously can consider in the sentence that it 

imposes whatever you may wish to present by way of mitigation 

and in that respect you may be arguing some of the points that you 

have made in your response, but that would go to the overall 

sentence that the Court imposes rather as to a specific objection to 

the PSR.

We reject the arguments that the district court refused to consider as 

mitigation, or in support of a variance or departure, the facts presented about 

the current situation with his two children. Whether it was a new factual 

circumstance or just a better explanation of how his children were being cared 

for all along, the issue of whether a change of family responsibilities should 

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cause a departure or variance in the sentence was known, weighed, and 

ultimately rejected by the district court.1

More generally, district courts have broad discretion in applying the 

sentencing factors in 18 U.S.C. § 3553. The district court is to “impose a 

sentence sufficient, but not greater than necessary, to comply with the 

purposes” of the statute. 18 U.S.C. § 3553. Marmolejo does not preclude the 

district court from considering Alvarez’s new and renewed arguments as a part 

of its Section 3553 analysis. Alvarez has not argued that the district court 

ignored a relevant factor or relied on an improper factor. His argument is 

simply that the district court did not, in its consideration of all the Section 3553 

factors, properly weigh his objections. Alvarez specifically argued that the 

district court failed to take into account his limited criminal history, his family 

circumstances, and the imperfect or sentencing entrapment arguments that it 

would not consider as specific Guidelines objections. 

Alvarez has not presented any compelling argument that the district 

court abused its discretion under Section 3553. He certainly disagrees with 

the district court’s exercise of its discretion, but that is not grounds for reversal. 

See Gall, 552 U.S. at 51. Furthermore, this court does not recognize “imperfect 

entrapment” or “sentencing entrapment” in any context, including for 

sentencing variance purposes. See United States v. Stephens, 717 F.3d 440, 

446 (5th Cir. 2013) (“We have never recognized sentencing entrapment as a 

defense...”). We decline to do so here. 

Alvarez has not shown that his circumstances, whether taken 

individually or together, compel the conclusion that the district court abused 

1 Had the district court not recognized its authority to consider the possibility of a 

departure, that would be procedural error. United States v. Robinson, 741 F.3d 588, 601-02 

(5th Cir. 2014). Because the district court did recognize its authority to consider a departure, 

we lack jurisdiction to consider its denial. See United States v. Tuma, 738 F.3d 681, 691 (5th 

Cir. 2013).

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its discretion under Section 3553. He has failed to meet his burden of rebutting 

the presumption of reasonableness. We will not disturb the district court’s 

within-Guidelines sentence based upon its application of the Section 3553 

factors. See Alvarado, 691 F.3d at 596.

AFFIRMED. 

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