Case: 14-50337 Document: 00512865869 Page: 1 Date Filed: 12/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50337
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 11, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE ANTONIO FAUSTINO-RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-812-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Jose Antonio Faustino-Rodriguez (Faustino) pleaded guilty to illegal
reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to
78 months of imprisonment and three years of supervised release. Faustino
challenges the substantive reasonableness of his sentence, arguing that his
sentence is unreasonable because it is greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a). He asserts that the 78-month sentence
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50337 Document: 00512865869 Page: 2 Date Filed: 12/11/2014
No. 14-50337
far exceeds the average sentence imposed in cases involving illegal reentry
after deportation and that the sentence failed to take into account his personal
circumstances and characteristics, such as his expression of contrition and
promise to never return to this country.
We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007). A within-guidelines sentence is entitled to a
presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). “The presumption is rebutted only upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
None of Faustino’s arguments are sufficient to rebut the presumption of
reasonableness. First, this court has rejected the argument that the
Guidelines overstate the seriousness of illegal reentry because it is a
nonviolent offense. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006). Second, we have also recognized that a claim of benign motive for
reentry fails to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Finally, the assertion
that Faustino’s sentence is higher than the average sentence imposed in an
illegal reentry case does not render the sentence he received an abuse of
discretion. See United States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007).
That is especially true because Faustino is not an average illegal reentry
defendant. He received a sixteen point enhancement because a previous
deportation had followed a federal drug trafficking offense for which the
sentence exceeded thirteen months. He also has two prior illegal reentry
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No. 14-50337
convictions–one in 2003 that resulted in a 48 month term of imprisonment and
one in 2008 that resulted in a 60 month term of imprisonment. The district
court in this case mentioned the inability of the 60 month sentence to deter
Faustino in imposing the lengthier sentence this time.
For these reasons, Faustino has not demonstrated that the district court
abused its discretion when it sentenced him to a within-guidelines sentence of
78 months. See Gall, 552 U.S. at 51. The judgment of the district court is
AFFIRMED.
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