Case: 10-50220 Document: 00511281594 Page: 1 Date Filed: 11/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 2, 2010
No. 10-50220
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CARLOS GERARDO CABALLERO-CERVANTES, also known as Carlos
Caballero,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-2787-1
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Carlos Gerardo Caballero-Cervantes pleaded guilty to attempted illegal
reentry into the United States, in violation of 8 U.S.C. § 1326, and making a
false claim of United States citizenship, in violation of 18 U.S.C. § 911. He
appeals his sentence of 24 months imprisonment—a sentence in the middle of
the advisory Sentencing Guidelines range. He contends the sentence was
substantively unreasonable because it was greater than necessary to meet the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-50220
goals of 18 U.S.C. § 3553(a), in the light of his asserted benign motives for
returning to the United States and his claimed minor criminal history.
Before reaching that issue, we dispose of Caballero’s assertion that his
sentence is not presumptively reasonable because the Guideline on which it was
based, § 2L1.2, is unsupported by empirical data. As Caballero concedes, this
claim has been rejected by our court. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). He raises the issue only to
preserve it for possible further review.
Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the advisory Guideline-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 49-51 (2007). Pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court, considering both the procedural propriety
and substantive reasonableness of the sentence in the light of the factors
delineated in 18 U.S.C.§ 3553(a). United States v. Delgado-Martinez, 564 F.3d
750, 752-53 (5th Cir. 2009).
Procedural error is not claimed. In that regard, “a sentence within a
properly calculated Guideline range is presumptively reasonable”. United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States, 551
U.S. 338, 347 (2007). Accordingly, this issue is reviewed only for plain error.
E.g., United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
As Caballero concedes, he did not object in district court to the
reasonableness of the sentence. See United States v. Arviso-Mata, 442 F.3d 382,
384 (5th Cir. 2006). To establish reversible plain error, Caballero must show,
inter alia, a clear or obvious error that affects his substantial rights. E.g.,
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he does so, our court
retains discretion to correct the error; generally, we will do so only if the error
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No. 10-50220
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
For the reasons that follow, there was no error. Therefore, his claim fails
not only under plain-error review but also under the ordinary standard.
In maintaining his sentence is substantively unreasonable, Caballero
essentially seeks to have our court re-weigh the § 3553(a) factors. Our court
accords great deference to within-Guidelines sentences that give proper weight
to the § 3553(a) factors. United States v. Campos-Maldonado, 531 F.3d 337, 338
(5th Cir. 2008). “[T]he sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) with respect to a particular defendant”. Id.
at 339. Even if our court would have considered imposing a different sentence,
such consideration would be “insufficient to justify reversal of the district court”.
Gall, 552 U.S. at 51.
Accordingly, Caballero has not shown his sentence was substantively
unreasonable, and he has not rebutted the presumption of reasonableness that
attaches to his within-Guidelines sentence. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008). The district court considered and rejected
Caballero’s contentions for a more lenient sentence. It determined a within-
Guidelines sentence was appropriate in the light of Caballero’s extensive
criminal history.
AFFIRMED.
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