Case: 14-50948 Document: 00513061422 Page: 1 Date Filed: 06/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50948 FILED
Summary Calendar June 1, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JAVIER LEOPOLDO MARTINEZ-CRUZ,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-524
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Javier Leopoldo Martinez-Cruz pleaded guilty to a single count of illegal
reentry after removal, in violation of 8 U.S.C. § 1326. The district court
imposed a sentence of 66 months’ imprisonment, which was within the
applicable advisory sentencing range under the Sentencing Guidelines.
Martinez challenges the substantive reasonableness of his sentence, asserting
it is greater than necessary to achieve the sentencing goals of 18 U.S.C.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50948
§ 3553(a). (Martinez twice objected in district court to the court’s application of
the 16-level enhancement for being previously deported following a conviction
for a crime of violence, U.S.S.G. § 2L1.2(b)(1)(A)(ii); but, he does not raise this
issue here. He has, therefore, abandoned it.)
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).
Martinez does not claim procedural error.
A within-Guidelines-sentencing range sentence is entitled to a
presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). “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).
As Martinez concedes, his claim that the presumption should not apply
because Guideline § 2L1.2 is not empirically based is foreclosed. E.g., United
States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009). (He
raises the issue only to preserve it for possible review in the future.) Likewise,
our court has rejected similar contentions to those made by Martinez that the
Guideline provisions are not based on “empirical data” because they “double
count” prior offenses, and because illegal reentry offenses are at most only
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nonviolent international trespasses. See, e.g., United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009); United States v. Juarez-Duarte, 513 F.3d 204,
212 (5th Cir. 2008).
The court heard and considered Martinez’ allocution, which included his
new understanding of the penalties for illegal reentry, his long-term residence
in the United States, and his desire to see his children. During sentencing, the
court noted Martinez’ criminal history, the violent nature of some of his
convictions (as referenced supra), and his disregard of warnings regarding
reentry. Martinez’ claims amount to a disagreement over the court’s weighing
of the § 3553(a) factors and are insufficient to rebut the presumption of
reasonableness that attaches to his sentence. E.g., Cooks, 589 F.3d at 186.
AFFIRMED.
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