United States v. Palacios-Mungia

* 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that this opinion should not be published and is not precedent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
F I L E D
April 25, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40949
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN PALACIOS-MUNGIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-04-CR-21
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Before KING, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Martin Palacios-Mungia, the defendant, pled guilty to illegal
reentry after previously having been convicted of transporting an
illegal alien and deported. The district court chose to sentence
Palacios-Mungia under the Sentencing Guidelines, selecting a
sentence of fifty-seven months from a recommended range of between
fifty-seven and seventy-one months.
Palacios-Mungia objects that the district court committed
error by declaring that despite the decision in United States v.

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Booker, 125 S. Ct. 738 (2005), it intended to “be bound by the
guidelines, even though they are advisory now under prevailing
Supreme Court authority.” Palacios-Mungia argues that this is an
impermissible return to the pre-Booker sentencing regime.
The Booker decision made clear that “[i]f the Guidelines as
currently written could be read as merely advisory provisions that
recommended, rather than required, the selection of particular
sentences in response to differing sets of facts, their use would
not implicate the Sixth Amendment. We have never doubted the
authority of a judge to exercise broad discretion in imposing a
sentence within a statutory range.” 125 S. Ct. at 750. We have
noted that a district judge remains under an obligation post-Booker
to “consider” the sentencing guidelines, and that “[i]f the
sentencing judge exercises her discretion to impose a sentence
within a properly calculated Guideline range, in our reasonableness
review we will infer that the judge has considered all the factors
for a fair sentence set forth in the Guidelines. Given the
deference due the sentencing judge’s discretion under the Booker /
Fanfan regime, it will be rare for a reviewing court to say such a
sentence is ‘unreasonable.’” United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005).
Here, the district court has stated its general intention to
adhere to the advisory sentences recommended by the Guidelines. The
district court has also recognized its willingness to sentence
outside the Guidelines in “rare circumstances that require the

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Court to temper seemingly Draconian penalties with a reasonable
measure of mercy.” Booker requires only that the Guidelines must
not be mandatorily imposed on the district court. It does not bar
a district court from voluntarily exercising its discretion to
generally sentence within those Guidelines. The district court
here did not err in sentencing Palacios-Mungia according to the
recommendations of the Guidelines.
The defendant acknowledges that his objection to the facial
constitutionality of 8 U.S.C. § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998).
For the foregoing reasons, Palacio-Mungia’s conviction and
sentence are AFFIRMED.

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