Case: 13-50112 Document: 00512431528 Page: 1 Date Filed: 11/06/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 6, 2013
No. 13-50112
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE CAMACHO OLIVAS, also known as Jorge Hernandez Jara,
Defendant-Appellant
Cons. w/ No. 13-50116
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE CAMACHO-OLIVAS, also known as Jorge Hernandez-Jara,
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2305-1
USDC No. 3:11-CR-434-1
Before KING, DeMOSS, and GRAVES, Circuit Judges.
Case: 13-50112 Document: 00512431528 Page: 2 Date Filed: 11/06/2013
No. 13-50112
c/w No. 13-50116
PER CURIAM:*
Jorge Camacho Olivas pleaded guilty to illegal reentry after having been
removed previously, in violation of 8 U.S.C. § 1326. The district court sentenced
him within the advisory guidelines range to 46 months of imprisonment. The
district court also revoked Camacho Olivas’s term of supervised release on a
prior conviction and imposed a concurrent sentence of six months. Camacho
Olivas now appeals.
On appeal, Camacho Olivas contends that his within-guidelines sentence
is substantively unreasonable because it is greater than necessary to achieve the
sentencing goals set forth in 18 U.S.C. § 3553(a). In support of his contention,
Camacho Olivas asserts that the guidelines range overstates the seriousness of
his offense because the Sentencing Guideline used to compute his offense level,
U.S.S.G. § 2L1.2, gives too much weight to his prior convictions, resulting in
double counting. He also asserts that the guidelines range fails to take into
account the seriousness of the offense, arguing that the offense was not violent
and that it was, at most, an international trespass. Finally, Camacho Olivas
asserts that the guidelines range failed to take into account his reason for
reentry.
Although Camacho Olivas argued for a downward variance, he failed to
specifically object to the reasonableness of the sentence after the sentence was
imposed. Rather, he reurged his motion for a downward variance. The
Government argues that review should be for plain error. This court need not
determine whether plain error review is appropriate, however, because Camacho
Olivas’s arguments fail even under the abuse of discretion standard of review.
See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
*
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.
2
Case: 13-50112 Document: 00512431528 Page: 3 Date Filed: 11/06/2013
No. 13-50112
c/w No. 13-50116
The substantive reasonableness of a sentence is reviewed under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Because
Camacho Olivas’s sentence was within the advisory guidelines range, his
sentence is presumptively reasonable. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).1
Camacho Olivas’s argument that the seriousness of his offense is
overstated because § 2L1.2 double counts his criminal history has been rejected.
See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). Similarly, we
have not been persuaded by the contention that a within-guidelines sentence
failed to account for the nonviolent nature of an illegal reentry offense. See
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
The district court listened to Camacho Olivas’s arguments for a lesser
sentence but found that a sentence within the guidelines range was appropriate.
His contentions regarding his motive for reentry do not rebut the presumption
of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008). Thus, Camacho Olivas has not shown sufficient reason for this
court to disturb the presumption of reasonableness applicable to his sentence.
See Cooks, 589 F.3d at 186.
Finally, Camacho Olivas raises no claims of error with respect to the
revocation proceeding or the revocation sentence. Thus, he has abandoned any
issues on appeal regarding the revocation judgment. See United States v.
Munoz-Hernandez, 285 F. App’x 156, 156-57 (5th Cir. 2008) (per curiam)
(unpublished).
Accordingly, the judgments of the district court are AFFIRMED.
1
Camacho Olivas argues that the presumption of reasonableness should not apply to
sentences calculated under § 2L1.2 because the Guideline lacks an empirical basis and results
in double counting. He correctly concedes that his argument is foreclosed by United States v.
Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009), and he raises the argument to preserve
it for possible further review.
3