Case: 11-50165 Document: 00511634191 Page: 1 Date Filed: 10/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 17, 2011
No. 11-50165
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE HUMBERTO NIETO-MOSQUEDA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-2767-1
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Humberto Nieto-Mosqueda appeals his 46-month sentence following
his guilty-plea conviction for illegal reentry and using a fraudulent visa. He
maintains the sentence is substantively unreasonable because it is greater than
necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a).
Relying on United States v. Galvez-Barrios, 355 F. Supp. 2d 958, 961-63 (E.D.
Wis. 2005), Nieto contends: the Guidelines range was too severe because
Guideline § 2L1.2 (providing, inter alia, a 16-level enhancement for illegal
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50165 Document: 00511634191 Page: 2 Date Filed: 10/17/2011
No. 11-50165
reentry following a drug trafficking offense) is not empirically based and double-
counts a defendant’s criminal record; the advisory Guideline sentencing range
overstated the seriousness of his criminal history and nonviolent reentry offense;
and that range failed to account for his motive for reentering–to be with his
family and to be a father to his three young daughters.
Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in the light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Our court first
determines whether the district court committed any significant procedural
error; and, if not, the sentence is reviewed for substantive unreasonableness.
Gall v. United States, 552 U.S. 38, 51 (2007). “A discretionary sentence imposed
within a properly calculated guidelines [sentencing] range is presumptively
reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008).
The district court considered Nieto’s reasons for a lower sentence but
determined a 46-month within-Guidelines sentence was appropriate. “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” Campos-Maldonado,
531 F.3d at 339. Nieto’s contentions–§ 2L1.2’s lack of an empirical basis, the
double-counting of his prior conviction, the nonviolent nature of his offense, his
motive for reentry, and his personal history and characteristics all justified a
lower sentence–are insufficient to rebut the presumption of reasonableness. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
AFFIRMED.
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