Case: 09-50706 Document: 00511116939 Page: 1 Date Filed: 05/20/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 20, 2010
No. 09-50706
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PEDRO CARRILLO-GRIEGO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-955-1
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Pedro Carrillo-Griego appeals the 87-month sentence imposed in
connection with his guilty-plea conviction for illegal reentry in violation of
8 U.S.C. § 1326. Carrillo-Griego argues that his sentence is greater than
necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and that he should
have been sentenced below the guidelines range. He contends that his Texas
robbery conviction was double counted and argues that his cultural ties to this
country and his motive for reentry support a sentence below the guidelines
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50706 Document: 00511116939 Page: 2 Date Filed: 05/20/2010
No. 09-50706
range. Carrillo-Griego cites Kimbrough v. United States, 522 U.S. 85 (2007), and
argues that this court should not accord his sentence a presumption of
reasonableness because the illegal reentry guideline is not supported by
empirical data.
In reviewing a sentence, we normally “consider[] the ‘substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.’”
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). However, Carrillo-Griego did not
object in the district court to the reasonableness of his sentence, so our review
is for plain error. See United States v. Anderson, 559 F.3d 348, 358 (5th Cir.),
cert. denied, 129 S. Ct. 2814 (2009).
Carrillo-Griego acknowledges that his empirical data argument is
foreclosed by this court’s precedent. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). Carrillo-Griego raises the issue to preserve it for further review. We
have also previously rejected Carrillo-Griego’s argument that the double
counting of a defendant’s criminal history necessarily renders a sentence
unreasonable. See Duarte, 569 F.3d at 529-31.
Carrillo-Griego’s assertions regarding his personal history and
characteristics and his motive for reentering the United States are insufficient
to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Carrillo-Griego has not
demonstrated that the district court’s imposition of a sentence at the top of the
guidelines range was plainly erroneous.
The district court’s judgment is AFFIRMED.
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