United States v. Mendez-Guzman

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 20, 2003
• Docket: 02-50838
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 20, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50838 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YVETTE MENDEZ-GUZMAN,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. DR-00-CR-501-1-FB

Before GARWOOD, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Yvette Mendez-Guzman (“Guzman”) appeals the district court’s

sentence imposed after revocation of her probation. Guzman pleaded

guilty in 2001 to bank fraud in violation of 18 U.S.C. § 1344 and

was placed on Five years’ probation. She pleaded no contest to

violating her probation and the district court sentenced her to

thirty-two months’ imprisonment.

* 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Guzman argues that her sentence was plainly unreasonable

because the district court based the sentence on a mistaken

recollection of the original sentencing hearing rather than on the

factors outlined in 18 U.S.C. § 3553(a). Because Guzman did not

object to her sentence in the district court, our review is for

plain error. United States v. McCullough, 46 F.3d 400, 401 (5th

Cir. 1995); see United States v. Olano, 507 U.S. 725, 731-37

(1993).

The district court clearly admonished Guzman several times

during the original sentencing hearing that she would face

significant prison time if she violated the terms of probation.

And at her revocation hearing a year later, the same district court

judge not only reminded Guzman of that earlier admonishment, but

also considered explicitly at least some of the sentencing factors

set out in section 3553(a). Thus, the district court noted

Guzman’s need for vocational training, and psychological and

financial counseling, see, e.g., 18 U.S.C. § 3553(a)(2)(D)

(requiring the court to consider the defendant’s need for

“educational or vocational training, medical care, or other

correctional treatment”), and concluded, given those needs and her

pattern of continuing violations, that a “halfway house is not an

option anymore.” See, e.g., id. (requiring the district court to

consider alternative available sentences). Moreover, the district

court’s written order revoking probation and resentencing Guzman

2 states that the court had given “due consideration to the . . .

statutory sentencing factors and pertinent policy statements.” The

record does not show that the court did not consider those matters.

Based on our review of the record, therefore, we conclude that

the district court both explicitly and implicitly considered the

sentencing factors in 18 U.S.C. § 3553(a). See United States v.

Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001); United States v. Pena,

125 F.3d 285, 287 (5th Cir. 1997); United States v. Teran, 98 F.3d

831, 836 (5th Cir. 1996). Moreover, we note that there is no

indication that the district court would likely impose any

different sentence were we to remand for resentencing. See United

States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003) (finding no

plain error where the district court could reimpose an identical

sentence). Accordingly, Guzman has failed to demonstrate plain

error in the district court’s sentence.

AFFIRMED.