United States v. Netro-Perales

Case: 23-40074 Document: 00516916519 Page: 1 Date Filed: 10/02/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED ____________ October 2, 2023 No. 23-40074 Lyle W. Cayce Summary Calendar Clerk ____________

United States of America,

Plaintiff—Appellee,

versus Mario Alberto Netro-Perales,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:22-CR-867-1 ______________________________

Before King, Haynes, and Graves, Circuit Judges. Per Curiam: * Mario Alberto Netro-Perales appeals his sentence for his guilty plea conviction for being an alien who was unlawfully present in the United States after deportation. After denying Netro-Perales’s motion for a downward departure, the district court imposed a within-guidelines term of 21 months of imprisonment and three years of supervised release.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-40074 Document: 00516916519 Page: 2 Date Filed: 10/02/2023

No. 23-40074

In his first argument, Netro-Perales contends that the district court erred by deferring to the Guidelines commentary when denying his motion for a downward departure. We may review a downward-departure denial only if “the district court held a mistaken belief that the Guidelines do not give it the authority to depart.” United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006). To the extent that Netro-Perales relies on Kisor v. Wilkie, 139 S. Ct. 2400 (2019), in support of his assertion that the Guidelines commentary is not due any deference, that assertion is repudiated by our recent decision in United States v. Vargas, 74 F.4th 673, 680-83 (5th Cir. 2023) (en banc). Although the record does not indicate that the district court relied on the Guidelines commentary to deny the downward departure motion, Netro- Perales has not shown any error in that regard even if the district court did rely on that commentary. Netro-Perales also contends that the district court erred by counting his prior illegal reentry convictions for purposes of a sentencing enhancement and to determine his criminal history category. Our review is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). As noted by the Government, Netro-Perales’s argument is identical to the one rejected by this court in United States v. Cordova-Lopez, 34 F.4th 442, 444-46 (5th Cir. 2022). Netro-Perales has failed to show any plain error. The district court’s judgment is AFFIRMED.