United States v. Ezequiel Mendoza-Espinoza

Case: 12-50959 Document: 00512406844 Page: 1 Date Filed: 10/15/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 15, 2013
No. 12-50959
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

EZEQUIEL MENDOZA-ESPINOZA, also known as Cipriano Rodriguez-Garcia,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-1063-1

Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
Ezequiel Mendoza-Espinoza pleaded guilty to illegally reentering the
United States after having been removed in violation of 8 U.S.C. § 1326, and he
was sentenced within the Sentencing Guidelines to 57 months of imprisonment.
He argues that his within-guidelines sentence is substantively unreasonable
because it is greater than necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50959 Document: 00512406844 Page: 2 Date Filed: 10/15/2013

No. 12-50959

We consider the reasonableness of a sentence by engaging in a bifurcated
review process. Gall v. United States, 552 U.S. 38, 51 (2007). Because Mendoza-
Espinoza does not argue that the district court committed any procedural error,
we consider only the “substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.” Id.
Although Mendoza-Espinoza asserts that a presumption of reasonableness
should not apply to his within-guidelines sentence because U.S.S.G. § 2L1.2
lacks an empirical basis, that issue is foreclosed. See United States v. Duarte,
569 F.3d 528, 530-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009). His argument that § 2L1.2 is unreasonable
because it is not empirically based likewise is foreclosed, and we have repeatedly
rejected the argument that a sentence imposed pursuant to § 2L1.2 is greater
than necessary to meet § 3553(a)’s goals as a result of any double counting
inherent in that Guideline. See Duarte, 569 F.3d at 529-31.
As for his argument that the guidelines range overstated the seriousness
of his illegal reentry offense and failed to reflect his personal history and
characteristics, the record reflects that the district court considered mitigation
factors and balanced them against other § 3553(a) factors. Mendoza-Espinoza
has failed to show that his within-guidelines sentence “does not account for a
factor that should receive significant weight, . . . gives significant weight to an
irrelevant or improper factor, or . . . represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). We find no reason to disturb the presumption of reasonableness in
this case. See id.; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
The judgment of the district court is AFFIRMED.