Case: 11-50476 Document: 00511765507 Page: 1 Date Filed: 02/23/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 23, 2012
No. 11-50476
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAFAEL IBARRA-SOTO, also known as Rafael Ibarra,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-141-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Rafael Ibarra-Soto challenges the substantive reasonableness of his
guidelines minimum 41-month sentence for illegal reentry. The Government has
moved for summary affirmance, or in the alternative, for an extension of time to
file an appellate brief. The Government’s motion for summary affirmance is
DENIED. See United States v. Holy Land Found. for Relief, 445 F.3d 771, 781
(5th Cir. 2006); United States v. Taylor, 631 F.2d 419, 420 & n.1 (5th Cir. 1980);
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 11-50476
motion for an extension of time is DENIED in the interest of judicial economy
because the Government adequately briefed the issues in its motion.
Ibarra-Soto asserts that the guidelines range overstated the seriousness
of his offense, failed to provide just punishment, and undermined respect for the
law because his illegal reentry was not a crime of violence, did not pose a danger
to others, and amounted to an international trespass. This argument does not
overcome the presumption that a guidelines sentence for illegal reentry is
reasonable. See United States v. Aguirre-Villa, 460 F.3d 681, 682-83 (5th Cir.
2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Next Ibarra-Soto contends that his sentence is unreasonable because the
illegal reentry guideline double-counted his criminal record by using his prior
convictions for indecency/sexual contact with a child to determine his offense
level and his criminal history score. Such an argument likewise “provides no
real grounds to doubt the reasonableness of his sentence.” United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
Finally, Ibarra-Soto asserts that the guidelines range failed to account for
his personal history and characteristics, particularly his lengthy residency in the
United States, his long marriage, and his seven legal resident children. He also
notes he returned for a “benign motive,” to receive medical treatment and be
with his family. The district court listened to these arguments at the sentencing
hearing. It found that Ibarra-Soto’s prior offenses distinguished his case more
than his length of time in the United States. Nevertheless, the court imposed
the minimum sentence under the Guidelines, indicating that the court took
Ibarra-Soto’s mitigation arguments into account.
Ibarra-Soto does not show that the district court failed to account for a
factor that should have received significant weight, gave significant weight to an
irrelevant or improper factor, or made a clear error of judgment in balancing
sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
He fails to rebut the presumption of reasonableness that applies to his
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No. 11-50476
guidelines sentence. See id.; Alonzo, 435 F.3d at 554. The judgment of the
district court is AFFIRMED.
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