Case: 14-50959 Document: 00513022176 Page: 1 Date Filed: 04/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50959 FILED
Summary Calendar April 28, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MERCED ELISEO ROMERO-GUEVARA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-83-1
Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
Merced Eliseo Romero-Guevara appeals the 57-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry
following deportation. He challenges the substantive reasonableness of his
sentence, arguing that his sentence is greater than necessary to accomplish
the sentencing objectives of 18 U.S.C. § 3553(a).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50959
We review the substantive reasonableness of a sentence under an abuse
of discretion standard, taking into account the totality of the circumstances.
United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011). We presume
that a within-guidelines sentence is reasonable. United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Romero-Guevara preserves for
further review the argument that a sentence under U.S.S.G. § 2L1.2 is not
entitled to the presumption of reasonableness because § 2L1.2 lacks an
empirical basis, acknowledging that this court’s precedent forecloses the
challenge. See Rodriguez, 660 F.3d at 232-33.
Romero-Guevara contends that the “high guidelines range” failed to
reflect his personal history and characteristics, as required by § 3553(a)(1).
The district court considered Romero-Guevara’s circumstances, history, and
request for a sentence at the bottom of the guidelines range or the most lenient
sentence the court would consider, the § 3553 factors, and the presentence
report and decided not to vary above the advisory guidelines range. Romero-
Guevara has not rebutted the presumption that the within-guidelines sentence
is reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
For the first time on appeal, Romero-Guevara argues that the 57-month
within-guidelines sentence is greater than necessary to meet the sentencing
goals of § 3553(a)(2)(A) because § 2L1.2 lacked an empirical basis;
“problematic[ally]” double counted his prior conviction; and produced a
guidelines range that overstated the seriousness of and failed to provide just
punishment for his illegal reentry offense that was not a violent crime or evil
in itself and was “at bottom” an international trespass. He asserts, also for the
first time, that the 57-month sentence is greater than necessary to meet
§ 3553(a)(2)(B)’s goal of deterring criminal conduct because it is substantially
more punitive that his prior sentences to probation.
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No. 14-50959
His general “object[ion] to the sentence imposed as being greater than
necessary to comply with the principles of 3553” failed to inform the district
court of the grounds for that objection that he now raises on appeal;
accordingly, we review them for plain error. See United States v. Neal, 578
F.3d 270, 272 (5th Cir. 2009); FED. R. CRIM. P. 51(b); see also Puckett v. United
States, 556 U.S. 129, 135 (2009). In support of his arguments, Romero-
Guevara cites nonprecedential decisions from district courts not under this
court’s jurisdiction. He cites no Supreme Court or Fifth Circuit authority that
would make the district court’s alleged errors clear or obvious. See Puckett,
556 U.S. at 135 (defining clear or obvious error). He fails to acknowledge
dispositive opinions from this court rejecting his arguments. See, e.g., United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009) (double counting); United
States v. Aguirre–Villa, 460 F.3d 681, 683 (5th Cir. 2006) (international
trespass).
Romero-Guevara has not shown that the district court plainly erred by
imposing a sentence that fails to account for a § 3553(a) factor or that
“represents a clear error of judgment in balancing sentencing factors.” See
Cooks, 589 F.3d at 186. Rather, his arguments amount to nothing more than
a disagreement with the district court over how the § 3553(a) factors should
have been balanced, which is insufficient to overcome the presumption. See
United States v. Alvarado, 691 F.3d 592, 597 (5th Cir. 2012).
The judgment of the district court is AFFIRMED.
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