Case: 12-50889 Document: 00512351149 Page: 1 Date Filed: 08/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2013
No. 12-50889
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
STEVEN JAVIER CASTRO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:12-CR-231-1
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Steven Javier Castro appeals his below-guidelines sentence imposed
following his guilty plea to illegal reentry. He argues that his sentence was
substantively unreasonable. Our review is for plain error only. United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Castro’s argument that the illegal reentry guideline is not empirically
based and results in a “double counting” of his criminal history is foreclosed by
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). His argument
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-50889 Document: 00512351149 Page: 2 Date Filed: 08/22/2013
No. 12-50889
that the advisory guidelines range overstated the seriousness of his nonviolent
illegal reentry offense has also been rejected by this court and is foreclosed. See
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Insofar as Castro argues that the sentence imposed was greater than
necessary to meet the goals of 18 U.S.C. § 3553(a) based on the unique
circumstances underlying his offense, he has not shown that the district court’s
downward variance was plainly erroneous. See Peltier, 505 F.3d at 91-92. When
resort is had to the record as a whole, it cannot be said that the district court
erred or deviated from a legal rule by imposing a 10-month downward variance
from the advisory guidelines range. See United States v. Olano, 507 U.S. 725,
732–33 (1993). Castro’s argument is, at its essence, a disagreement with the
district court’s weighing of the § 3553(a) factors, and, as such, he has not shown
that the district court erred on that basis. See Gall v. United States, 552 U.S. 38,
51 (2007).
AFFIRMED.
2