Case: 11-40490 Document: 00511764145 Page: 1 Date Filed: 02/22/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2012
No. 11-40490
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE PATRICIO RIOS-ROJAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-109-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Jose Patricio Rios-Rojas pleaded guilty to illegally reentering the United
States after deportation following an aggravated felony conviction. The district
court departed below the 46- to 57-month guideline range pursuant to § 5K3.1
and sentenced him to 37 months of imprisonment. On appeal, he argues that the
district court failed to give an adequate explanation of the reasons for the
sentence. Rios-Rojas also contends that the sentence was unreasonably high in
light of the § 3553(a) factors. He argues that the 16-level drug trafficking
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40490 Document: 00511764145 Page: 2 Date Filed: 02/22/2012
No. 11-40490
enhancement was excessive and that his family circumstances made him less
culpable.
The Government moves for summary affirmance, asserting that this court
has rejected defendants’ disagreements with the weight given by the district
court to the various 18 U.S.C. § 3553(a) factors. In the alternative, the
Government seeks an extension of time to file an appellate brief.
We review Rios-Rojas’s challenge to his sentence for reasonableness under
an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
The sentencing transcript reveals that the sentencing judge reviewed the
presentence report, considered Rios-Rojas’s written submissions to the court,
acknowledged defense counsel’s arguments and Rios-Rojas’s statement, stated
that it had considered the § 3553(a) factors, yet refused to further depart or
deviate below the guideline range. Thus, the district court’s statement of
reasons for the sentence was adequate. See Rita v. United States, 551 U.S. 338,
359 (2007); United States v. Gomez-Herrera, 523 F.3d 554, 564-65 (5th Cir.
2008).
This court applies a rebuttable presumption of reasonableness to a
within-guidelines sentence. United States v. Newson, 515 F.3d 374, 379 (5th Cir.
2008). Rios-Rojas seeks to preserve for potential future review his claim that the
presumption of reasonableness should not apply to sentences calculated under
§ 2L1.2 because that Guideline is flawed, but he concedes that this claim is
foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th
Cir. 2009). We need not decide whether Rios-Rojas’s sentence is entitled to a
presumption of reasonableness because he cannot show that the sentence was
unreasonable even without the presumption. Specifically, he has failed to show
that his sentence “(1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006); see Gall, 552
2
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No. 11-40490
U.S. at 51. Accordingly, the judgment of the district court is AFFIRMED. The
Government’s motion for summary affirmance or in the alternative for an
extension of time to file a brief is DENIED.
3