Case: 10-50095 Document: 00511201803 Page: 1 Date Filed: 08/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2010
No. 10-50095
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
MARCOS ALFREDO CALDERON,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-2876-1
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Marcos Alfredo Calderon appeals the 46-month term of imprisonment
imposed for his guilty plea conviction of violating 8 U.S.C. § 1326(a) and (b)(2)
by being found in the United States without permission, following removal. He
argues that his sentence, which fell within his advisory sentencing guidelines
range, is substantively unreasonable because it was greater than necessary to
achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). Calderon contends
that his sentence overstates the seriousness of his illegal reentry offense and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50095 Document: 00511201803 Page: 2 Date Filed: 08/12/2010
No. 10-50095
does not properly account for his personal history and characteristics, including
his motive for reentering the United States. He also argues that the sentencing
guideline used in determining his sentence, U.S.S.G. § 2L1.2, is flawed because
it ignores the remote nature of his prior offense.
Generally, this court reviews criminal sentences for reasonableness. Gall
v. United States, 552 U.S. 38, 51 (2007). This court first determines whether the
district court committed any procedural errors. Id. If the district court’s
decision is procedurally sound, this court will “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard
. . . tak[ing] into account the totality of the circumstances.” Id. The Government
contends that we should review the district court’s sentencing decision for plain
error only because Calderon did not object to the reasonableness of his sentence
in the district court. We need not decide the appropriate level of review, because
Calderon’s sentence may be affirmed even under reasonableness review.
Before imposing Calderon’s sentence, the district court judge considered
the advisory sentencing guidelines range, the information in the presentence
report, and the § 3553(a) factors. The judge also considered the arguments
presented at sentencing and determined that a guideline sentence would be
appropriate. See United States v. Mondragon-Santiago, 564 F.3d 357, 365-67
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Calderon has not shown
that the district court erred or abused its discretion in selecting his sentence or,
consequently, that the within-guidelines sentence imposed in his case is
unreasonable. See Gall, 552 U.S. at 51; United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009), cert. denied 130 S. Ct. 1930 (2010).
The judgment of the district court is AFFIRMED.
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