IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10612

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALCADIO CABALLERO DE LA TORRE, also known as “Coochi”,

Defendant-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CR-194-3

Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.

PER CURIAM:*

Alcadio Caballero De La Torre appeals the sentence imposed following 

his guilty plea conviction of conspiracy to possess with intent to distribute a 

controlled substance. First, he argues that the 151-month sentence imposed 

by the district court is substantively unreasonable. Because he objected to the 

substantive reasonableness of the sentence in the district court, he preserved 

 

* 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

May 3, 2019

Lyle W. Cayce

Clerk

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the issue for appellate review. See United States v. Powell, 732 F.3d 361, 381 

(5th Cir. 2013). 

The district court considered the Presentence Report (PSR), the advisory 

guidelines range, the 18 U.S.C. § 3553(a) factors, the statements of Caballero 

De La Torre’s sister and mother, defense counsel’s arguments and exhibits 

concerning data prepared by the Sentencing Commission, Caballero De La 

Torre’s allocution, and his lack of criminal history. The court ultimately 

determined that a sentence at the bottom of the advisory guidelines range was 

appropriate. Caballero De La Torre has not shown that the district court failed 

to consider a factor that should have been given significant weight. See United 

States v. Simpson, 796 F.3d 548, 558 (5th Cir. 2015). He has failed also to show 

that the district court gave too much weight to the Sentencing Guidelines. See, 

e.g., Gall v. United States, 552 U.S. 38, 49-50 (2007) (stating that the district 

court must first correctly calculate the advisory guidelines range under the 

Sentencing Guidelines). Caballero De La Torre has not shown that the district 

court made a clear error of judgment in weighing the § 3553(a) factors. See

Simpson, 796 F.3d at 558. His disagreement with the district court’s weighing 

of the sentencing factors is insufficient to rebut the presumption of 

reasonableness that is applicable to within-guidelines sentences. See United 

States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Rodriguez, 

523 F.3d 519, 526 (5th Cir. 2008). Therefore, he has not shown that his 

sentence was substantively unreasonable. See Simpson, 796 F.3d at 557-58.

Caballero De La Torre also asserts that the district court erred in 

imposing a four-year term of supervised release because he is a deportable 

alien. He did not object to the supervised release term at sentencing. However, 

he raised the issue in a Federal Rule of Criminal Procedure 35 motion filed 

after the judgment was entered.

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A district court may correct a sentence imposed as a result of an 

arithmetical, technical, or other clear error within 14 days after the imposition 

of a sentence. FED. R. CRIM. P. 35. A district court may also correct a sentence 

on the motion of the Government to reflect a defendant’s subsequent 

substantial assistance. Rule 35(b). However, Rule 35 does not allow a district 

court to reconsider the application of the Guidelines or to reconsider the 

appropriateness of the sentence. United States v. Lopez, 26 F.3d 512, 520-21 

(5th Cir. 1994); see also United States v. Ross, 557 F.3d 237, 241-43 (5th Cir. 

2009).

Caballero De La Torre could not raise this issue in a Rule 35 motion

because it is not the type of error contemplated by Rule 35(a). See Lopez, 26 

F.3d at 520-21; Ross, 557 F.3d at 241-43. Therefore, review is limited to plain 

error. See Puckett v. United States, 556 U.S. 129, 135 (2009). To show plain 

error, he must show a forfeited error that is clear or obvious and that affected 

his substantial rights. Id. If he makes such a showing, this court has the 

discretion to correct the error but only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” Id. (internal quotation 

marks and citations omitted).

The district court adopted the PSR, which expressly stated that the court 

ordinarily should not impose a term of supervised release on a defendant who 

is a deportable alien. See U.S.S.G. § 5D1.1(c). The district court also 

considered the § 3553(a) factors and made an individualized determination 

that the supervised release term would “provide an added measure of 

deterrence and protection based on the facts and circumstances of this case.” 

This court has held that such an explanation is sufficient to uphold a

supervised release term on plain error review. See United States v. DominguezAlvarado, 695 F.3d 324, 329-30 (5th Cir. 2012). Because the district court 

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considered the § 3553(a) factors and determined that the supervised release 

term would provide an added measure of deterrence, the district court’s 

imposition of the four-year supervised release term was not plainly erroneous. 

See id. at 329-30.

AFFIRMED.

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