United States v. Jorge Zavala-Rosales

Case: 09-40819 Document: 00511136496 Page: 1 Date Filed: 06/09/2010

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

FILED
June 9, 2010
No. 09-40819
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JORGE OMAR ZAVALA-ROSALES,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:09-CR-28-1

Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
Following his guilty plea to being unlawfully present in the United States
after deportation, Jorge Omar Zavala-Rosales was sentenced to 46 months of
imprisonment, which was at the bottom of the applicable guidelines range. On
appeal, he argues that the district court committed procedural error by failing
to address his arguments for a lesser sentence and that the sentence imposed
was substantively unreasonable.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40819 Document: 00511136496 Page: 2 Date Filed: 06/09/2010
No. 09-40819

“[W]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, 356 (2007). The requirement that the district court explain
its sentence may be satisfied if the district court listens to arguments and then
indicates that a sentence within the guidelines range is appropriate. Id. at 357-
59. Here, the district court heard counsel’s argument for a lesser sentence,
specifically rejected those arguments, and stated that a sentence within the
applicable guidelines range satisfied the factors of 18 U.S.C. § 3553(a). See
United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir.), cert. denied, 129
S. Ct. 624 (2008).
Zavala-Rosales suggests that his sentence is substantively unreasonable
because, in calculating his sentencing range, a single prior robbery conviction
resulted in both a 16-level enhancement and all five of his criminal history
points. However, the Guidelines provide for consideration of a prior conviction
for both criminal history and the U.S.S.G. § 2L1.2 enhancement. See § 2L1.2,
comment. (n.6). We have rejected the argument that such “double-counting”
renders a sentence unreasonable. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
“A discretionary sentence imposed within a properly calculated guidelines
range is presumptively reasonable.” United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). The fact that this
court “might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S.
at 51. We conclude there is “no reason to disturb” the presumption of
reasonableness in this case. See Rodriguez, 523 F.3d at 526.
AFFIRMED.

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