Case: 17-20605 Document: 00514511698 Page: 1 Date Filed: 06/13/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 17-20605 Fifth Circuit FILED Summary Calendar June 13, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee v. EDDIE VARELA MALDONADO, also known as Efren Cundumi, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CR-361-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Eddie Varela Maldonado, also known as Efren Cundumi, 1 appeals the 36-month sentence imposed following his guilty plea conviction for illegal reentry after removal in violation of 8 U.S.C. § 1326. Cundumi argues that the sentence imposed is procedurally unreasonable because the district court relied on clearly erroneous facts. He contends that, contrary to the district * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 Maldonado’s true name is Efren Cundumi Vente (Cundumi), as he so refers to himself in his brief. Case: 17-20605 Document: 00514511698 Page: 2 Date Filed: 06/13/2018 No. 17-20605 court’s apparent belief at sentencing, he had been deported and returned to the United States illegally only once, and that he had not engaged in other criminal conduct subsequent to his deportation and return. He also asserts that the sentence imposed is substantively unreasonable. We engage in a two-part process when reviewing a sentence. First, we consider whether the sentencing court committed procedural error. See Gall v. United States, 552 U.S. 38, 51 (2007). Relevant to this case, procedural error includes imposing a sentence on the basis of clearly erroneous facts. Id. “A procedural error during sentencing is harmless if the error did not affect the district court’s selection of the sentence imposed.” United States v. Delgado– Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (internal quotation marks and citation omitted). The error must have affected the court’s selection of the sentence, and the Government has the burden of showing “that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error made.” Id. If there is no procedural error, or if the error is harmless, we then consider the substantive reasonableness of the sentence. Id. The district court’s factfinding is reviewed for clear error. United States v. Gutierrez–Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). When giving reasons for the sentence imposed, the district court denied Cundumi’s request for a downward departure, stating that part of the reason is that I believe the Defendant’s heart is hardened in this matter and he is intent on coming back to this country every chance he gets, and on each occasion that he’s been here he has violated not simply the immigration law - that is, you know, is here illegally - but he has engaged in other conduct, and that suggests to me that his crimes ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals