Case: 10-50830 Document: 00511454535 Page: 1 Date Filed: 04/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 22, 2011
No. 10-50830
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CESAR DURAN-MONTES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-948-1
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cesar Duran-Montes (Duran) appeals the 57-month sentence imposed
following his guilty plea conviction for being found illegally in the United States
following removal. Duran contends that the within-guidelines sentence was
greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C.
§ 3553(a) and was therefore substantively unreasonable. He specifically argues
that U.S.S.G. § 2L1.2 was established in a problematic manner and effectively
double-counts his criminal history. He contends that his offense constitutes a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50830 Document: 00511454535 Page: 2 Date Filed: 04/22/2011
No. 10-50830
mere international trespass and that the guidelines range failed to reflect his
personal history and characteristics, including his benign motive for reentering
the United States. Duran further asserts that his sentencing range was
unreasonable because the district court did not consider the unwarranted
sentencing disparity between defendants sentenced in the Western District of
Texas, which does not have a fast-track program, and defendants sentenced in
districts that do have such a program.
This court reviews the sentence for reasonableness, under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Where, as in
this case, the district court imposes a sentence within a properly calculated
guidelines range, the sentence is entitled to a rebuttable presumption of
reasonableness. United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
The contention that a defendant is entitled to relief because § 2L1.2 is not
supported by empirical data and effectively double-counts a defendant’s criminal
history is unavailing. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009). The “international trespass” argument
raised by Duran does not justify disturbing an otherwise presumptively
reasonable sentence. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006). Furthermore, as Duran concedes, we have held that the disparity
between districts with fast-track programs and districts without them is not
unwarranted. See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.
2008).
The district court made an individualized sentencing decision based on the
facts of the case in light of the factors set out in § 3553(a). See Gall, 552 U.S.
at 49-50. The district court’s conclusion that a within-guidelines sentence is
appropriate is entitled to deference, and we presume that it is reasonable. See
id. at 51-52; Newson, 515 F.3d at 379. We see no reason to disturb the district
court’s discretionary decision to impose a sentence within the guidelines range.
AFFIRMED.
2