Case: 15-50301 Document: 00513268830 Page: 1 Date Filed: 11/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50301 FILED
Summary Calendar November 12, 2015
Lyle W. Cayce
Clerk
Consolidated with No. 15-50302
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN CARLOS MARTINEZ-VALDEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-105-1
USDC No. 3:14-CR-2253-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Juan Carlos Martinez-Valdez appeals the 13-month sentence he received
following his guilty plea conviction for illegal reentry, as well as the six-month
sentence he received following the revocation of his supervised release. Three
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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months of the six-month revocation sentence were ordered to be served
consecutively to the non-revocation sentence.
Martinez-Valdez argues that his aggregate 19-month sentence is
substantively unreasonable because it is greater than necessary to effectuate
the sentencing goals of 18 U.S.C. § 3553(a). He asserts that his illegal reentry
offense is essentially a nonviolent international trespass and that the illegal
reentry Guideline, U.S.S.G. § 2L1.2, is problematic because it is not empirically
based, atypically establishes an offense level based on prior criminal conduct,
and effectively double counts the defendant’s criminal history in calculating a
guidelines range. He also argues that his sentence fails to adequately account
for his personal history and characteristics, including his benign reasons for
reentry and his nonviolent criminal history. We review these newly raised
claims for plain error only. United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). Martinez-Valdez concedes that plain error review applies, but he
seeks to preserve, for possible further review, his contention that no objection
to the reasonableness of a sentence is required.
When, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is presumptively reasonable. United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To rebut this presumption,
Martinez-Valdez must show “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.” Id.
As Martinez-Valdez acknowledges, his argument that the presumption
of reasonableness should not apply because § 2L1.2 lacks an empirical basis is
foreclosed, and he raises it only to preserve it for further review. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). We
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likewise have previously rejected the contention that a within-guidelines
sentence is unreasonable because § 2L1.2 lacks an empirical basis and
effectively double counts prior convictions. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67 &
n.7. Also, we have not been persuaded by the claim that the Sentencing
Guidelines do not take into account the nonviolent nature of an illegal reentry
offense. See United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
Martinez-Valdez’s alleged benign motive for returning to this country is
insufficient to rebut the presumption of reasonableness attached to his within-
guidelines illegal reentry sentence. See United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).
Insofar as Martinez-Valdez challenges the fact that part of his revocation
sentence was ordered to be served consecutively to his non-revocation sentence,
his challenge is unavailing. Because his six-month revocation sentence falls
within the applicable advisory guidelines range and is consistent with U.S.S.G
§ 7B1.3(f), p.s. (mandating “[a]ny term of imprisonment imposed upon the
revocation of . . . supervised release shall be ordered to be served consecutively
to any sentence of imprisonment that the defendant is serving”), it is entitled
to a presumption of reasonableness. See, e.g., United States v. Lopez-
Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008) (citation omitted); United
States v. Candia, 454 F.3d 468, 474 (5th Cir. 2006). Martinez-Valdez has made
no effort to rebut the presumption of reasonableness afforded his revocation
sentence.
Martinez-Valdez has failed to show that his sentences amount to error,
plain or otherwise. Accordingly, the district court’s judgment is AFFIRMED.
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