Case: 14-51010 Document: 00513022064 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. 14-51010 FILED
Summary Calendar April 28, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JULIO CESAR RODRIGUEZ-ORTEGA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-646-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
Julio Cesar Rodriguez-Ortega appeals the 18-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry
following deportation in violation of 8 U.S.C. § 1326. For the first time on
appeal, he challenges the substantive reasonableness of his sentence and
argues that it was greater than necessary to satisfy the sentencing goals
articulated in 18 U.S.C. § 3553(a). According to Rodriguez-Ortega, U.S.S.G.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-51010 Document: 00513022064 Page: 2 Date Filed: 04/28/2015
No. 14-51010
§ 2L1.2, the guideline for the offense of illegal reentry, is not empirically based,
overstates the seriousness of a non-violent reentry offense, and effectively
double counts a defendant’s criminal record. He also argues that his sentence
does not account for his personal history and characteristics, including his
motives for returning to the United States.
This court assesses the substantive reasonableness of a sentence
imposed by the district court for an abuse of discretion. Gall v. United States,
552 U.S. 38, 51 (2007). Where, as here, a defendant fails to object in the district
court to the reasonableness of the sentence, we review for plain error. United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). Rodriguez-Ortega
recognizes that plain error is the applicable standard under these
circumstances but argues, to preserve this issue for further review, that no
objection was required to preserve a substantive-reasonableness claim for
direct appeal.
The district court must correctly calculate the advisory guidelines range
and make an individualized assessment based on the facts of the case in light
of § 3553(a). Gall, 552 U.S. at 49–50. It then must impose a sentence sufficient,
but not greater than necessary, to comply with the goals of § 3553(a)(2). “A
discretionary sentence imposed within a properly calculated guidelines range
is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008) (per curiam).
Rodriguez-Ortega argues that we should not apply the presumption of
reasonableness to his sentence that was calculated under § 2L1.2 because this
guideline is not empirically based; he recognizes, however, that his claim is
foreclosed by circuit precedent and raises the issue only to preserve it for
further review. See United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir.
2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir.
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No. 14-51010
2009). We have also rejected arguments that double-counting necessarily
renders a sentence unreasonable, see Duarte, 569 F.3d at 529–31, and that the
guidelines overstate the seriousness of illegal reentry because it is simply a
non-violent international trespass offense, United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006) (per curiam).
The district court in this case considered Rodriguez-Ortega’s personal
history and his explanations for illegally reentering the United States before
concluding that the applicable guidelines range was reasonable and imposing
a sentence within that range. Rodriguez-Ortega has failed to show that his
“sentence does not account for a factor that should receive significant weight,
[ ] gives significant weight to an irrelevant or improper factor, or [ ] represents
a clear error of judgment in balancing the factors.” See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009). The district court was in a superior position
to find facts and assess their importance under § 3553(a), and this court will
not, as Rodriguez-Ortega seems to urge, reweigh the district court’s
assessment of the § 3553(a) factors. See Gall, 552 U.S. at 51–52; Campos-
Maldonado, 531 F.3d at 339. Rodriguez-Ortega’s assertions are insufficient to
rebut the presumption of reasonableness. See Duarte, 569 F.3d at 529–30;
United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008).
The judgment of the district court is therefore AFFIRMED.
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