USA v. Cresencio Trejo-Visueth

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 6, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-15494
Non-Argument Calendar
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D. C. Docket No. 09-00323-CR-T-26-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRESENCIO TREJO-VISUETH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 6, 2010)
Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Cresencio Trejo-Visueth appeals the district court’s decision to impose an
upward variance and sentence him to 60 months imprisonment for being found in

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the United States after having been deported due to an aggravated felony
conviction. Trejo-Visueth’s guideline range called for 18 to 24 months
imprisonment.
On appeal, Trejo-Visueth first argues that his sentence was procedurally and
substantively unreasonable. We find no merit to these contentions. The sentence
was procedurally reasonable because the district court provided an in-depth
explanation for imposing an upward variance, and, aside from challenging the
adequacy of the district court’s explanation, Trejo-Visueth does not raise any other
procedural reasonableness arguments on appeal. Trejo-Visueth’s sentence was
also substantively reasonable because this was the fourth time he illegally re-
entered the United States. We cannot say that the district court’s determination
that a number of the § 3553(a) factors favored an upward variance was erroneous.
Trejo-Visueth also argues that the district court violated 18 U.S.C.
§ 3553(c)(2) by failing to give its reasons for imposing an upward variance in
writing. He acknowledges that he failed to make this objection to the district court,
but argues that the applicable standard of review is de novo because the statute in
question “is a Congressional mandate imposed on the court.”
If a sentencing issue is raised for the first time on appeal, as this claim is,
we will review that issue solely for plain error. United States v. Aguillard, 217
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F.3d 1319, 1320 (11th Cir. 2000). Under plain error review, there must be (1) an
error, (2) that is plain, and (3) that affects substantial rights. Id. When these three
factors are met, we may then exercise our discretion and correct the error if it
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123
L.Ed.2d 508 (1993). For an error to affect substantial rights, it generally “must
have been prejudicial: It must have affected the outcome of the district court
proceedings.” Id. at 734, 113 S.Ct. at 1778.
When a district court imposes a sentence outside of the applicable guideline
range, 18 U.S.C. § 3742(c)(2) requires that the “reasons [for the variance or
departure] must . . . be stated with specificity in the written order of judgment and
commitment.” 18 U.S.C. § 3742(c)(2). However, in this case, the court orally
explained its reasons for imposing an upward variance during the sentencing
proceeding. Although the district court failed to include a written statement of
reasons with its judgment, appellant cannot establish that his substantial rights
have been affected because the court sufficiently stated on the record the reasons
for the sentences it was imposing.
AFFIRMED.
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