IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50036

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARTIN ALVARADO-ZAPATA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:08-CR-959-2

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

*

Martin Alvarado-Zapata appeals his 188-month concurrent sentences for

conspiracy with intent to distribute more than 100 kilograms of marijuana,

conspiracy to import more than 100 kilograms of marijuana, possession with

intent to distribute more than 100 kilograms of marijuana, and importation of

more than 100 kilograms of marijuana. His two prior felony drug convictions

qualified him as a career offender under the Sentencing Guidelines. He asserts

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United States Court of Appeals

Fifth Circuit

F I L E D

November 1, 2010

Lyle W. Cayce

Clerk

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.

See U.S.S.G. § 4B1.1(a). 1

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that the sentences were unreasonable because the career offender guideline

overstated the danger he presents to the community, the severity of his conduct

as a mule who was paid a few hundred dollars to “carry a heavy bundle,” and the

need for deterrence. He contends that the career offender guideline unfairly

treated him the same way it treats serial violent offenders and the leaders of

drug organizations. Additionally, he contends that the guideline failed to

account for his family’s economic circumstances or his personal characteristics

as a man who lived in poverty who sought to be a good father. He asserts that

a 10-year sentence would have been sufficient to deter him from future criminal

conduct. Finally, he contends that the sentence was unreasonable because it

was based in part upon unsubstantiated speculation by the district court that he

had committed additional drug trafficking crimes.

We review sentences for reasonableness in light of the sentencing factors

in 18 U.S.C. § 3553(a). We first examine whether the district court committed

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any significant procedural error, “such as . . . selecting a sentence based on

clearly erroneous facts.” Because Alvarado-Zapata did not raise his argument

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in the district court that his sentences were based upon unsubstantiated

speculation about his criminal history, the potential procedural error is subject

to plain error review. He must show a forfeited error that is clear or obvious

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and that affects his substantial rights. If he makes such a showing, we have the

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discretion to correct the error only if it seriously affects the fairness, integrity,

or public reputation of judicial proceedings.

6

Gall v. United States, 552 U.S. 38, 46, 51 (2007); United States v. Cisneros-Gutierrez,

2

517 F.3d 751, 764 (5th Cir. 2008). 

Gall, 552 U.S. at 51. 3

See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied,

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130 S. Ct. 192 (2009).

See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

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See id. 6

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Although the district court asserted a belief that Alvarado-Zapata “ma[de]

his living” smuggling drugs and suggested that he had engaged in smuggling

activities for which he had not been caught, the record does not support a finding

that the court selected his sentences based upon that belief. The district court

emphasized that this was Alvarado-Zapata’s third drug trafficking conviction,

that he was caught with a greater amount of drugs each time, and that his

earlier federal sentences had not been adequate to deter his criminal behavior.

We find no plain error.

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We then review the substantive reasonableness of the sentences under a

deferential abuse of discretion standard, taking into account the totality of the

circumstances. Because Alvarado-Zapata did not object to his sentences as

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unreasonable in the district court, we review the issue for plain error, which

“requires considerable deference to the district court and erects a more

substantial hurdle to reversal of a sentence than does the reasonableness

standard.” We also apply a presumption of reasonableness to sentences that fall

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within the Guidelines range.

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The record shows that the district court properly considered the relevant

sentencing factors under § 3553(a) and sentenced Alvarado-Zapata at the bottom

of the guidelines range after considering his arguments for a downward

variance. As noted above, the court emphasized Alvarado-Zapata’s prior

trafficking convictions, the increasing quantities of drugs he was caught with in

each successive conviction, and the failure of his earlier federal sentences to

deter his criminal activities. He fails to show that the district court committed

See Puckett, 129 S. Ct. at 1429. 7

Gall, 552 U.S. at 51; Cisneros-Gutierrez, 517 F.3d at 764. 

8

United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). 

9

United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

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any error, plain or otherwise, in imposing the guidelines minimum, and he fails

to overcome the presumption of reasonableness.

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The judgment of the district court is AFFIRMED.

See Puckett, 129 S. Ct. at 1429; Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92; 11

Alonzo, 435 F.3d at 554. 

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