Case: 13-50027 Document: 00512495677 Page: 1 Date Filed: 01/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50027 January 10, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FAUSTINO CARRERA-CASTRO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-1593-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Faustino Carrera-Castro (Carrera) appeals the 48-month sentence
imposed following his conviction of illegal reentry. Carrera contends that the
sentence is unreasonable because the Guideline for illegal reentry, U.S.S.G.
§ 2L1.2, lacks an empirical basis, double-counts criminal history, and places
too much weight on a prior conviction; that his prior conviction occurred in
1999; that illegal reentry is not a violent offense but merely a trespass; and
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50027
that the court failed to give sufficient consideration to his motive for returning,
which was to attend his brother’s funeral and participate in a family novena.
Although Carrera objected to the sentence as greater than necessary to
satisfy the factors of 18 U.S.C. § 3553(a) and requested a variance based on the
age of the conviction and his motive, he did not challenge the empirical basis
of § 2L1.2, nor did he raise his trespass argument. We need not review these
arguments for plain error, however, as even under the ordinary standard, they
fail.
When, as here, a district court imposes a sentence within a properly
calculated guidelines range, the sentence is entitled to a rebuttable
presumption of reasonableness. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009). As Carrera concedes, his challenge to the applicability of the
presumption to a sentence based on § 2L1.2 is foreclosed. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
A within-guidelines sentence is not necessarily unreasonable because
§ 2L1.2 lacks an empirical basis and double-counts prior convictions. See id.
With respect to the age of the prior conviction, the “staleness of a prior
conviction used in the proper calculation of a guidelines-range sentence does
not render a sentence substantively unreasonable and does not destroy the
presumption of reasonableness that attaches to such sentences.” United States
v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011). We have likewise rejected the
argument that an illegal reentry is merely a trespassory offense. United States
v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
Carrera’s contention that the district court failed to take into account
that he returned to attend the novena and funeral for his brother also fails.
The district court specifically addressed this argument but concluded that, in
light of Carrera’s criminal history, this factor was not sufficient to warrant a
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No. 13-50027
sentence below the guidelines range. The district court was in a superior
position to find facts and judge their import under § 3553(a). See Gall v. United
States, 552 U.S. 38, 51-52 (2007). Carrera’s mere disagreement with the
district court’s decision to afford greater weight to his criminal history than to
the arguments he offered for a lesser sentence is not enough to rebut the
presumption of reasonableness. See United States v. Ruiz, 621 F.3d 390, 398
(5th Cir. 2010).
AFFIRMED.
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