IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10678

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ARMANDO BENAVENTE-FRANCO,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CR-12-1

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Armando Benavente-Franco challenges his 96-month sentence, imposed

following his guilty-plea conviction for unlawful reentry, in violation of 8 U.S.C.

§ 1326. He contends: his sentence was substantively unreasonable; and

remand is necessary for the district court to consider whether a recent

sentencing Guideline amendment, eliminating recency points in determining a

criminal-history score, warrants a lesser sentence.

United States Court of Appeals

Fifth Circuit

F I L E D

June 6, 2011

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.

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No. 10-10678

Although post-Booker, the sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard, the district court must still properly calculate the advisory

Guideline-sentencing range for use in deciding on the sentence to impose. Gall

v. United States, 552 U.S. 38, 51 (2007). In that respect, its application of the

Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

The presentence investigation report (PSR) computed Benavente’s

sentence as follows: a criminal-history category of V; a total-offense level of 21,

which included a 16-level enhancement based upon his previous felony

conviction for illegal transportation of aliens; and a Guideline range of 70 to 87

months’ imprisonment. In calculating his criminal history, the PSR assessed

Benavente 10 criminal-history points: two for a 2002 illegal-reentry conviction;

three for illegal-transportation-of-aliens conviction; two for driving while

intoxicated, coupled with a conviction for evading arrest; two for committing the

illegal-reentry offense while on supervised release; and one “recency” point for

committing the instant offense within two years of release from imprisonment

on the illegal-transportation-of-aliens conviction. The PSR stated that an

upward departure would not be unreasonable, based on Benavente’s criminal

history. The district court issued an order tentatively concluding that the

sentence imposed should be “significantly greater than the top of the advisory

guideline range” because of, inter alia, Benavente’s criminal history.

At sentencing, the district court departed upward, pursuant to Guideline

§ 4A1.3 (warranting upward departure where reliable information indicates

criminal-history category substantially under-represents seriousness of

defendant’s criminal history or the likelihood defendant will commit other

crimes). It appropriately considered Benavente’s pattern of criminal behavior

and disregard for the law, evidenced by prior convictions, including at least six

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No. 10-10678

prior illegal entries, only one of which resulted in prosecution and for which he

served 90 days. See § 4A1.3(a)(1), (a)(2)(E); United States v. Zuniga-Peralta, 442

F.3d 345, 347-48 (5th Cir. 2006). Benavente contends: his criminal history is

less serious than that of the typical reentry defendant; his prior alientransporting offense is not as serious as other offenses that also result in a 16-

level enhancement; and the 16-level enhancement in illegal-reentry cases is

generally not justified. Those contentions do not establish an abuse of

discretion.

Moreover, his reliance on statistics regarding mean and median sentences

for illegal reentry, and the rate of departures in the Northern District of Texas,

is unavailing: those statistics shed no light on either the factors informing the

underlying sentencing decisions, or on whether his 96-month sentence was

unreasonable. See, e.g., United States v. Willingham, 497 F.3d 541, 544-45 (5th

Cir. 2007) (noting statistics on average sentence meaningless because disregards

individual circumstances). His sentence, nine months above the advisory-range

maximum, is within departure ranges our court has previously upheld. E.g.,

United States v. Jones, 444 F.3d 430, 442-43 (5th Cir. 2006); Zuniga-Peralta, 442

F.3d at 348.

With regard to Benavente’s request for remand to permit the district court

to consider a Guideline amendment eliminating recency points,that amendment

was pending during Benavente’s sentencing, but he failed to raise that issue in

district court. Accordingly, that issue is reviewed only for plain error. Puckett

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

Under plain-error review, defendant must show a clear or obvious error

affecting his substantial rights. Id. Even if such showing is made, relief is

discretionary, and should be exercised only when the error “seriously affects the

fairness, integrity, or public reputation of judicial proceedings”. Id. (citation and

internal quotation marks omitted).

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The district court was required to apply the Guidelines in effect at the time

of sentencing, United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir.

2007); its failure to consider sua sponte a pending amendment is not clear or

obvious error. Even assuming error, Benavente has not shown his substantial

rights were affected, because there is no evidence the court would have imposed

a lesser sentence without the recency point, particularly in the light of its

discussing Benavente’s criminal history. See, e.g., United States v.

Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir. 2009). Further, although

the amendment was adopted while this appeal was pending, we reject

Benavente’s suggestion we should remand on that basis. See United States v.

Huff, 370 F.3d 454, 466 (5th Cir. 2004); United States v. McIntosh, 280 F.3d 479,

484-85 (5th Cir. 2002).

AFFIRMED.

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