IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40847

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee 

v. 

JUAN JOSE PINEDA-GARCIA, true name Marco Antonio Torres-Palacios, 

Defendant - Appellant 

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 5:15-CR-966-1

Before BARKSDALE, GRAVES, and COSTA, Circuit Judges. 

PER CURIAM:*

Marco Antonio Torres-Palacios pleaded guilty to illegal reentry following 

deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). The district court 

imposed, inter alia, a within-guidelines sentence of 57-months’ imprisonment. 

Torres contends the court committed a procedural error when it failed to 

recognize its authority to grant a downward variance based on then-pending 

amendments to Guideline § 2L1.2. 

 

* 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

February 7, 2017

Lyle W. Cayce

Clerk

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2 

Although post-Booker, the Sentencing Guidelines are advisory only, the 

district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 48–51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51. 

The parties dispute whether Torres preserved the issue for appeal. 

Although he objected to the denial of the requested variance, Torres did not 

contend the court failed to recognize its discretion to grant a variance, as he 

does now. Thus, review is only for plain error. E.g., United States v. Broussard, 

669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Torres must show a 

forfeited plain (clear or obvious) error that affected his substantial rights. E.g.,

Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the 

discretion to correct the reversible plain error, but should do so only if it 

“seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings”. Id. 

 Torres asserts the court’s failure to appreciate its authority to grant the 

requested downward variance is demonstrated by its following statement at 

sentencing: “[T]he sentencing court must apply the version of the Sentencing 

Guidelines effective at the time of sentencing, unless the application of that 

revision had violated the Ex Post Facto Clause of the Constitution”. The court’s 

statement, however, is simply an expression of the general rule that a 

sentencing court must initially apply the Guidelines then in effect. See 18 

U.S.C. § 3553(a)(4)(A)(ii); U.S.S.G. § 1B1.11(a); United States v. Myers, 772 

F.3d 213, 218 (5th Cir. 2014); see also Gall, 552 U.S. at 49 (holding a correct 

calculation of the Guidelines sentencing range is the “starting point and the 

initial benchmark” for sentencing decisions). 

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The record further reflects the court made an individualized 

determination of the appropriate sentence in the light of the facts and 

assertions presented, the advisory Guidelines sentencing range, and the 

§ 3553(a) sentencing factors. See id. at 49–50. When offered the opportunity

to speak at sentencing, Torres: discussed his criminal and employment history

and his family situation; asserted the § 3553(a) objectives could be achieved 

with a below-Guidelines sentence; and raised the possibility of continuing the 

sentencing hearing until the proposed amendments took effect. 

Noting that “these cases are difficult”, the court then referenced Torres’ 

criminal history and its prior ruling regarding the applicable Guidelines before 

finally eliminating the possibility of a downward variance, declaring that “the 

[c]ourt will sentence pursuant to the Guidelines as they exist today”. 

Moreover, in pronouncing Torres’ within-Guidelines sentence, the court stated 

it was acting “[p]ursuant to the Sentencing Reform Act of 1984, as modified by 

the case of United States v. Booker, [543 U.S. 220 (2005)]”. 

As Torres acknowledges, Booker rendered the Guidelines merely 

advisory. See 543 U.S. at 226–27, 245. By citing Booker in imposing the 

sentence, the district court evinced its understanding of the Guidelines’ 

advisory nature. Torres has failed to establish plain error, as it is not clear or 

obvious the court erroneously believed it lacked the authority to grant a 

downward variance based on the proposed amendments to § 2L1.2. See United 

States v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012). 

AFFIRMED. 

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