Case: 09-50949 Document: 00511210771 Page: 1 Date Filed: 08/20/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2010
No. 09-50949
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERASMO CONTRERAS-AGUINAGA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-297-1
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Erasmo Contreras-Aguinaga appeals the 46-month sentence imposed after
his guilty plea conviction for illegal reentry following deportation in violation of
8 U.S.C. § 1326. He contends that the sentence was greater than necessary to
satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was therefore
substantively unreasonable. Contreras-Aguinaga argues that his illegal reentry
offense was not a crime of violence and was “at bottom, an international
trespass.” Contreras-Aguinaga also maintains that his sentence fails to reflect
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50949 Document: 00511210771 Page: 2 Date Filed: 08/20/2010
No. 09-50949
his personal history and characteristics, including his motive for reentering the
United States.
This court reviews the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007). Contreras-Aguinaga’s 46-month sentence, within the guidelines
range, is presumed reasonable on appeal. See United States v. Duarte, 569 F.3d
528, 530 (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).
The district court considered Contreras-Aguinaga’s request for a
downward variance, and it ultimately determined that a sentence at the top of
the guidelines range was appropriate based on the circumstances of the case and
the § 3553(a) factors. Contreras-Aguinaga essentially seeks to have his sentence
vacated based on a reweighing of the § 3553(a) factors by this court. However,
the fact that we “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 have also rejected Contreras-Aguinaga’s “international trespass”
argument. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
The district court did not abuse its discretion in imposing the 46-month
within-guidelines sentence. See id. We affirm.
AFFIRMED.
2