Case: 12-51289 Document: 00512402240 Page: 1 Date Filed: 10/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2013
No. 12-51289
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VIRGILIO BERRIOS-RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-548-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Virgilio Berrios-Ramirez appeals the 46-month sentence imposed following
his guilty plea conviction for illegal reentry following deportation in violation of
8 U.S.C. § 1326. He contends that the within-guidelines sentence is
substantively unreasonable because it was greater than necessary to satisfy the
sentencing goals set forth in 18 U.S.C. § 3553(a). Specifically, Berrios-Ramirez
argues that the guidelines range failed to account for the non-violent nature of
his illegal reentry offense and his benign motive for returning to the United
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-51289
States, that the sentence failed to account for his personal history and
characteristics, and that the district court placed too much emphasis on his
criminal history. Because Berrios-Ramirez did not object to the substantive
reasonableness of his sentence in the district court, plain error review applies.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
“When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and the . . . § 3553(a)
factors, we will give great deference to that sentence and will infer that the judge
has considered all the factors for a fair sentence set forth in the Guidelines in
light of the sentencing considerations set out in § 3553(a).” United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (internal quotation marks
and citation omitted). “A discretionary sentence imposed within a properly
calculated guidelines range is presumptively reasonable.” Id.
Berrios-Ramirez contends that the presumption of reasonableness should
not apply because U.S.S.G. § 2L1.2 is not empirically based and therefore
produces a sentencing range too high to fulfill § 3553(a)’s goals. He concedes
that his argument is foreclosed by circuit precedent but seeks to preserve the
issue for further review. As Berrios-Ramirez concedes, we have consistently
rejected an “empirical data” argument. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357,
366 (5th Cir. 2009).
The district court considered Berrios-Ramirez’s mitigation arguments and
request for a sentence at the bottom of the applicable guidelines range, and it
ultimately concluded that a sentence at the middle of the guidelines range was
appropriate based on the totality of the circumstances and the § 3553(a) factors.
We have rejected the argument that the Sentencing Guidelines overstate the
seriousness of illegal reentry because it is simply a non-violent international
trespass offense. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006). Further, Berrios-Ramirez’s arguments that his alcohol problem, motive
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No. 12-51289
for reentering, cultural assimilation, and inability to obtain fast-track relief
justified a lower sentence are insufficient to rebut the presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
Therefore, Berrios-Ramirez has failed to show that his 46-month
within-guidelines sentence is substantively unreasonable, and there is no
reversible plain error. See Campos-Maldonado, 531 F.3d at 339. The district
court’s judgment is AFFIRMED.
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