Case: 10-41188 Document: 00511626850 Page: 1 Date Filed: 10/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2011
No. 10-41188 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE GONZALO RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
ELROD, Circuit Judge:
Defendant-Appellant Jose Gonzalo Rodriguez appeals his sentence of 27
months imprisonment and three years of supervised release for illegal reentry
after deportation. We affirm.
Jose Gonzalo Rodriguez pleaded guilty without the benefit of a plea
agreement to illegal reentry after deportation. He argues that the 27-month
sentence he received is substantively unreasonable because it improperly
considered a “stale” prior conviction, and because the sentencing judge failed to
give sufficient consideration to his cultural assimilation.
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No. 10-41188
At sentencing, the probation officer assigned Rodriguez a total offense
level of 18, reflecting a 12-level enhancement for a 1990 felony drug trafficking
conviction under § 2L1.2(b)(1)(B). At trial, Rodriguez filed objections to the Pre
Sentencing Report (PSR) and requested a downward variance or departure
based on his cultural assimilation and the staleness of the 1990 conviction. At
the sentencing hearing, defense counsel stated that the U.S. Sentencing
Guidelines calculations in the PSR were correct and reiterated the request for
a sentence below 27 months due to the age of Rodriguez’s prior drug conviction
and his cultural assimilation. Rodriguez was allowed to speak in mitigation of
sentence.
The district court stated that it had reviewed “all the information” in the
PSR and observed that Rodriguez came to the United States when he was ten
years old. The court expressed concern about the rapidity of Rodriguez’s return
to the United States after having been deported for his drug conviction. The
court sentenced Rodriguez to 27 months of imprisonment and three years of
supervised release. Following the imposition of sentence, defense counsel
objected that the court had not adequately considered the factors under 18
U.S.C. § 3553(a) and that the sentence was greater than was sufficient or
necessary in Rodriguez’s case. The court responded that it had considered all
the factors but “specifically believe[d] that the sentence is necessary in this case
to reflect the seriousness of the offense [and] to afford adequate deterrence to
future criminal conduct. And even those factors that the court didn’t specifically
touch on the court did consider.”
Jose Gonzalo Rodriguez now appeals a 27-month within-guidelines
sentence, arguing that it is substantively unreasonable. As a threshold matter,
Rodriguez argues that the presumption of reasonableness should not apply to his
within-guidelines sentence on appellate review because the guideline upon
which it is based, U.S.S.G. § 2L1.2, is penologically flawed and not the result of
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empirical evidence or study. These arguments are foreclosed by this court’s
decisions in United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.
2009) and United States v. Duarte, 569 F.3d 528, 529–531 (5th Cir. 2009).
Rodriguez further asserts that, even if the presumption of reasonableness
applies, it is rebutted by the facts and circumstances of this case. Specifically,
he argues that (1) the 12-level increase in his offense level was excessive because
he committed the felony drug offense in 1990 and (2) the district court failed to
accord sufficient weight to his cultural assimilation. This court reviews
sentences for reasonableness in light of the sentencing factors in § 3553(a),
engaging in a bifurcated analysis of the sentence imposed by the district court.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Delgado-Martinez,
564 F. 3d 750, 762 (5th Cir. 2009); United States v. Mares, 402 F.3d 519–520.
Rodriguez does not contend that the district court’s decision is
procedurally unsound. When there are no procedural errors, this court will then
“consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard” and will “take into account the totality of the
circumstances.” Gall, 552 U.S. at 51. A sentence within the range suggested by
the guidelines is entitled to a rebuttable presumption of reasonableness. United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States,
551 U.S. 338, 347 (2007) (holding that an appellate court may apply a
presumption of reasonableness to a sentence within a properly-calculated
guidelines range).
Rodriguez cites United States v. Amezcua-Vasquez, 567 F.3d 1050,
1055–58 (9th Cir. 2009), for the contention that the rote application of a prior
conviction to effect a guideline range enhancement may result in a substantively
unreasonable sentence in situations such as his where the prior conviction is old.
In Amezcua-Vasquez, the Ninth Circuit held that a 16-level enhancement based
on a 25-year-old conviction for attempted manslaughter and assault was an
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abuse of the district court’s discretion and was substantively unreasonable.
Amezcua-Vasquez was issued by another circuit and is not binding on this court.
See Newby v. Enron Corp., 394 F.3d 296, 309 (5th Cir. 2004). The court noted
that Amezcua-Vasquez was intended to be “limited in scope” — that is, bound by
the case’s particular facts. Subsequent Ninth Circuit cases citing Amezcua-
Vasquez have distinguished on its facts. See, e.g., United States v. Valencia-
Barragan, 608 F.3d 1103, 1109 (9th Cir. 2010), cert. denied, 131 S. Ct. 539, 178
L. Ed. 2d 396 (U.S. 2010); United States v. Lizarraga-Beltran, 363 F. App’x 516,
517 (9th Cir. 2010).
Other circuits have confronted the same argument, but have not used
Amezcua-Vasquez or its reasoning to overturn a sentence as substantively
unreasonable. The Second Circuit distinguished Amezcua-Vasquez from the
facts of the case in United States v. Montague, and found that the sentence
imposed was not substantively unreasonable despite the age of the defendant’s
prior convictions. 376 F. App’x 124, 127 (2d Cir. 2010). The Sixth Circuit, in
United States v. Brissett, 375 F. App’x 473 (6th Cir. 2010), approved of Amezcua-
Vasquez, but declined in both Brissett and in United States v. Lafarga, 395 F.
App’x 257, 263 (6th Cir. 2010), to apply it. In each case, the court rejected the
defendant’s arguments and upheld the sentence. The Seventh Circuit,
considering an appeal that raised, among other issues, the age of prior
convictions, noted that a district court judge is never required to deviate from
the sentencing guidelines. United States v. Moreno-Padilla, 602 F.3d 802, 812
(7th Cir. 2010). The Tenth Circuit cited Amezcua-Vasquez’s central proposition
approvingly, but has twice found it to be inapplicable. United States v. Chavez-
Suarez, 597 F.3d 1137, 1138 (10th Cir. 2010), cert. denied, 131 S. Ct. 286, 178 L.
Ed. 2d 188 (U.S. 2010) (the staleness of a conviction “may under certain
circumstances warrant a variance below the guidelines.”). But see United States
v. Diaz-Gutierrez, 366 F. App’x 955, 959 (10th Cir. 2010) (declining to apply
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Amezcua-Vasquez to the facts of the case). The Eleventh Circuit, without citing
to Amezcua-Vasquez, rejected its base proposition in an unpublished decision in
United States v. Terrazas-Hernandez, 404 F. App’x 356, 358 (11th Cir. 2010).
The court stated that “[t]he age of the prior conviction is irrelevant to the
application of the enhancement. Accordingly, the district court did not err by
applying the enhancement or by refusing to grant a downward variance to
minimize or eliminate the enhancement’s adverse impact on his guideline
range.” Id. The Eleventh Circuit reached the same conclusion in United States
v. Velasquez-Santos, 381 F. App’x 936 (11th Cir. 2010).
This court has never considered in a published opinion whether the
staleness of a prior conviction used in a guidelines calculation renders the
sentence imposed substantively unreasonable. However, in an unpublished
opinion, this circuit declined to adopt or apply Amezcua-Vasquez’s reasoning.
United States v. Gonzalez-Valencia, 401 F. App’x 888, 888 (5th Cir. 2010).
Moreover, in a series of other unpublished opinions, this court has repeatedly
rejected the argument that the staleness of a defendant’s prior conviction
renders a within-range sentence substantively unreasonable. United States v.
Leonardo, 408 F. App’x 866 (5th Cir. 2011); United States v. Perales-Carrizales,
2011 U.S. App. LEXIS 5760 at *3–4 (5th Cir. Mar. 17, 2011); United States v.
Martinez-Ledesma, 367 F. App’x 501 (5th Cir. 2010); United States v. Segovia-
Castillo, 399 F. App’x 14 (5th Cir. 2010); United States v. Sura-Villalta, 380 F.
App’x 407 (5th Cir. 2010); United States v. Salas-Velasquez, 379 F. App’x 315
(5th Cir. 2010); United States v. Mireles-Rodriguez, 2010 US App. LEXIS 25404
(5th Cir. Dec 13, 2010); United States v. Noriega-Cisneros, 311 F. App’x 716, 718
(5th Cir. 2009); United States v. Ortiz-Arriaga, 355 F. App’x 849 (5th Cir. 2009);
United States v. Gonzales-Torres, 288 F. App’x 927 (5th Cir. 2008); United States
v. Gomez-Herrera, 523 F.3d 554 (5th Cir. 2008); United States v. Campos-
Maldonano, 531 F.3d 337 (5th Cir. 2008); United States v. Castillo, 294 F. App’x
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855 (5th Cir. 2008); United States v. Stanley, 281 F. App’x 370 (5th Cir. 2008);
United States v. Perez-Jimenez, 250 F. App’x 93 (5th Cir. 2007). In these cases,
this court has emphasized the presumption of reasonableness that attaches to
a sentence within the guidelines range, and has found that the appellant’s
arguments were not sufficient to rebut that presumption. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) (stating the rebuttable presumption of
reasonableness). We adopt the conclusion of these unpublished opinions and
hold that the staleness of a prior conviction used in the proper calculation of a
guidelines-range sentence does not render a sentence substantively
unreasonable and does not destroy the presumption of reasonableness that
attaches to such sentences.
Rodriguez also avers that the district court erred in failing to accord
proper weight to his cultural assimilation. Although cultural assimilation can
be a mitigating factor and form the basis for a downward departure, nothing
requires “that a sentencing court must accord it dispositive weight.” See § 2L1.2,
comment. (n.8) (2010); United States v. Lopez-Velasquez, 526 F. 3d 804, 807 (5th
Cir. 2008). Moreover, the district court considered and rejected Rodriguez’s
arguments for a sentence below the advisory guidelines range after considering
the sentencing factors of 18 U.S.C. § 3553(a) and the arguments made during
allocution. The court determined that a sentence at the bottom of the guidelines
range was appropriate. A defendant’s disagreement with the propriety of the
sentence imposed does not suffice to rebut the presumption of reasonableness
that attaches to a within-guidelines sentence. See United States v. Gomez-
Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008). The district court did not abuse
its discretion by imposing a 27-month sentence here. See Gall, 552 U.S. at 51.
For the foregoing reasons, the district court’s judgment is AFFIRMED.
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