Case: 15-51081 Document: 00513651918 Page: 1 Date Filed: 08/25/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-51081 c/w 15-51100 FILED
Summary Calendar August 25, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO RODRIGUEZ-ALVAREZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-50-1
USDC No. 2:14-CR-1661-1
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Francisco Rodriguez-Alvarez appeals the 78-month term of
imprisonment imposed for his conviction of being found in the United States
without permission, following removal and the consecutive 18-month term of
imprisonment imposed following the revocation of his supervised release for 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-51081 Document: 00513651918 Page: 2 Date Filed: 08/25/2016
No. 15-51081 c/w 15-51100
prior illegal reentry offense. He argues that the combined sentences are
greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).
Because Rodriguez-Alvarez did not object to the reasonableness of either
sentence in the district court, we will review the sentences for only plain error.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). 1 To show
plain error, Rodriguez-Alvarez must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
Because Rodriguez-Alvarez’s sentence for the illegal reentry offense fell
within his advisory sentencing guidelines range and Rodriguez-Alvarez’s
revocation sentence fell within the range recommended by the guidelines policy
statements, both are subject to a presumption of reasonableness. See United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008); United States
v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008). Rodriguez-Alvarez
argues that the sentence imposed for his illegal reentry offense should not be
accorded a presumption of reasonableness because the applicable Guideline,
U.S.S.G. § 2L1.2, is not derived from empirical data. However, he concedes
that his argument is foreclosed. 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. 2009). He raises the argument solely to preserve it for possible
further review.
1 Rodriguez-Alvarez argues that plain error review is inapplicable because objections
to the reasonableness of his sentences were not required to preserve his arguments for
appeal. He notes a circuit split regarding the standard of review for substantive-
reasonableness claims not raised in the district court. However, Rodriguez-Alvarez’s
argument is foreclosed. See Peltier, 505 F.3d at 391-92. He raises the issue solely to preserve
it for possible further review.
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Case: 15-51081 Document: 00513651918 Page: 3 Date Filed: 08/25/2016
No. 15-51081 c/w 15-51100
This court has rejected the arguments that Rodriguez-Alvarez indicates
warranted a shorter sentence, namely, that § 2L1.2 lacks an empirical basis,
overstates the seriousness of what essentially is a non-violent international
trespass, and places too heavy an emphasis on a defendant’s criminal history
by double counting prior convictions in the offense level and in the criminal
history calculation. See Duarte, 569 F.3d at 529-31; Mondragon-Santiago, 564
F.3d at 366-67; United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.
2008).
Rodriguez-Alvarez argues in light of his advanced age that a shorter
sentence should have been imposed for his illegal reentry offense and for
revocation of his supervised release. At sentencing, the district court
considered the relevant § 3553(a) factors, the advisory sentencing guidelines
and policy guidelines ranges, the facts and mitigating arguments, including
Rodriguez-Alvarez’s age, and determined, based on Rodriguez-Alvarez’s
criminal history, that a sentence within the advisory guidelines range for each
offense was sufficient to achieve the sentencing goals of § 3553(a). Rodriguez-
Alvarez’s disagreement with the propriety of his sentence and the court’s
weighing of the § 3553(a) factors is insufficient to rebut the presumption of
reasonableness that attaches to his sentences. See United States v. Koss, 812
F.3d 460, 472 (5th Cir. 2016); United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). Accordingly, Rodriguez-Alvarez has not established plain error.
The judgments of the district court are AFFIRMED.
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