Case: 09-50897 Document: 00511187221 Page: 1 Date Filed: 07/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 28, 2010
No. 09-50897
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GILBERTO ESPINOZA-MORAN, also known as Gilberto Espinoza Moran,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-65-1
Before REAVLEY, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Gilberto Espinoza-Moran pleaded guilty without the benefit of a plea
agreement to being unlawfully present in the United States following removal
in violation of 8 U.S.C. § 1326(a), (b). Although the applicable advisory
sentencing guidelines range was 37 to 46 months of imprisonment, the district
court determined that a non-guidelines sentence was appropriate and sentenced
Espinoza-Moran to 60 months of imprisonment. Espinoza-Moran argues on
appeal that his sentence is 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50897 Document: 00511187221 Page: 2 Date Filed: 07/28/2010
No. 09-50897
Following United States v. Booker, 543 U.S. 220 (2005), our review of
sentences is for reasonableness in light of the sentencing factors set forth in 18
U.S.C. § 3553(a). See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.
2005). We first determine whether the district court committed procedural
error. See Gall v. United States, 552 U.S. 38, 51 (2007). If there is no procedural
error, we then “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id.
As Espinoza-Moran does not suggest that the sentencing court committed
any procedural errors in calculating or explaining the reasons for his sentence,
our review is confined to the substantive reasonableness of the sentence. See
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008); Gall, 552 U.S. at 51.
We find no merit in Espinoza-Moran’s argument that the district court erred in
finding that the guidelines range did not adequately account for his criminal
history. See Brantley, 537 F.3d at 350. In light of the substantial criminal
conduct not counted under the Sentencing Guidelines, Espinoza’s 60-month
sentence was within the discretion of the district court and was substantively
reasonable under 18 U.S.C. § 3553(a). See Brantley, 537 F.3d at 348-50; United
States v. Jones, 444 F.3d 430, 433-34, 440-41 (5th Cir. 2006).
AFFIRMED.
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