Case: 13-51059 Document: 00512734891 Page: 1 Date Filed: 08/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-51059 FILED
Summary Calendar August 15, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CIPRIANO RODRIGUEZ-GARCIA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-1717
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Cipriano Rodriguez-Garcia challenges the 46-month sentence imposed
following his guilty-plea conviction for illegal reentry after deportation, in
violation of 8 U.S.C. § 1326. Rodriguez contends his sentence is substantively
unreasonable because it is greater than necessary to meet the sentencing goals
outlined in 18 U.S.C. § 3553(a). Along that line, he maintains: Sentencing
Guideline § 2L1.2 lacks an empirical basis and effectively double-counted his
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-51059 Document: 00512734891 Page: 2 Date Filed: 08/15/2014
No. 13-51059
prior drug conviction; the advisory-Guidelines-sentencing range overstated the
seriousness of his non-violent offense, which he claims is merely an
international trespass; and the district court failed to account for his personal
history and characteristics, including his motive for returning to the United
States (to be with his family).
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Rodriguez does not claim procedural error; instead, he contends only that
his sentence is substantively unreasonable. On the other hand, “[a]
discretionary sentence imposed within a properly calculated [G]uidelines
[sentencing] range is presumptively reasonable”. United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
Rodriguez contends the within-Guidelines sentence should not be
afforded that presumption because Guideline § 2L1.2 lacks an empirical basis.
He concedes our precedent, see, e.g., United States v. Mondragon-Santiago, 564
F.3d 357, 366–67 (5th Cir. 2009), forecloses this contention and raises it only
to preserve it for possible further review. Furthermore, our court has rejected
the oft-repeated claims that a sentence based on § 2L1.2 is substantively
unreasonable because it effectively double-counts a defendant’s criminal
history or overstates the seriousness of illegal reentry. United States v. Duarte,
569 F.3d 528, 529–31 (5th Cir. 2009).
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No. 13-51059
The district court considered Rodriguez’ claims but determined the 46-
month sentence was appropriate. Rodriguez’ claims regarding his personal
history and circumstances are insufficient to rebut the presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565–66
(5th Cir. 2008).
AFFIRMED.
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