Case: 13-50248 Document: 00512495017 Page: 1 Date Filed: 01/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50248 January 9, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN CARLOS PALMA-PALMA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-957-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Juan Carlos Palma-Palma (Palma) 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 57 months of imprisonment.
On appeal, Palma contends that his within-guidelines sentence is
substantively unreasonable because it is greater than necessary to achieve 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-50248 Document: 00512495017 Page: 2 Date Filed: 01/09/2014
No. 13-50248
sentencing goals set forth in 18 U.S.C. § 3553(a). In support of his contention,
Palma 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 and triple counting. He also asserts that the guidelines range fails to
take into account the minimal seriousness of the offense, claiming that his
offense was not violent and that it was, at most, an international trespass.
Finally, Palma asserts that the guidelines range failed to take into account his
personal characteristics, the circumstances of his prior offense, and his reasons
for reentry.
Although Palma argued for a downward variance and objected to the
district court’s stated intention to impose a guidelines sentence, he failed to
object specifically to the reasonableness of the sentence after the sentence was
imposed. The government insists that our review should be for plain error. We
need not determine whether plain error review is required, however, because
Palma’s contentions fail even under the abuse of discretion standard of review.
See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). As Palma’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
Palma’s argument that the seriousness of his offense is overstated
because § 2L1.2 double and triple counts his criminal history has been rejected.
See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009). Similarly,
1 Palma 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.
2
Case: 13-50248 Document: 00512495017 Page: 3 Date Filed: 01/09/2014
No. 13-50248
we have not been persuaded by the contention that the Guidelines fail 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 Palma’s request for a lesser sentence but
found that one within the guidelines range was appropriate. Palma’s
contentions regarding personal characteristics, the circumstances of his prior
offense, and 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). Palma has not shown sufficient reasons for us to reverse his
sentence, given the presumption of reasonableness applicable to it. See Cooks,
589 F.3d at 186.
The judgment of the district court is AFFIRMED.
3