IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 11, 2008
No. 07-20715
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CORANDO CAMPOS-MALDONADO, also known as Corando Campos
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-48-1
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:
Corando Campos-Maldonado (Campos) pleaded guilty to one count of
unlawful reentry, in violation of 8 U.S.C. § 1326. The district court sentenced
him to 57 months in prison, within the guidelines range. Campos now appeals.
The presentence report (PSR) calculated the guidelines range as 57 to 71
months, which included a 16-level crime of violence enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A), based on Campos’s prior conviction for assault with a
deadly weapon. Campos argued that the district court should impose a below-
guidelines sentence of 24 to 30 months. He asserted that the 16-level
enhancement overstated the seriousness of his prior offense, arguing (1) that the
offense should have been treated as at most an aggravated felony rather than a
No. 07-20715
crime of violence and, (2) that the offense was a youthful aberration. He raised
other grounds for a non-guidelines sentence, including his subsequent history
of non-violence and his lack of incentive to return to the United States. The
district court indicated that it had considered Campos’s arguments but
concluded that “the Sentencing Guidelines have spoken adequately and
appropriately to the range of punishment that is available and should be utilized
by the Court in this instance.” The court also noted that Campos had lost his
permanent resident status and his opportunity to become a United States
citizen.
Campos contends on appeal that the sentence was unreasonable in light
of the Supreme Court’s decisions in Gall v. United States, 128 S. Ct. 586 (2007),
and Kimbrough v. United States, 128 S. Ct. 558 (2007). He asserts that our prior
jurisprudence restricted the district court’s sentencing discretion in a manner
incompatible with Gall and Kimbrough. He further argues that the
enhancement Guideline, § 2L1.2(b)(1)(A), is flawed and should not be given the
same weight as other Guidelines because it was not the product of empirical
studies or data or the usual process employed by the Sentencing Commission in
formulating Guidelines. Finally, he contends that the district court focused on
an irrelevant factor, namely, that he lost his permanent resident status and
opportunity to apply for citizenship.
When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and the 18 U.S.C.
§ 3553(a) factors, we “will give great deference to that sentence” and “will infer
that the judge has considered all the factors for a fair sentence set forth in the
Guidelines” in light of the sentencing considerations set out in § 3553(a). United
States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also
Rita v. United States, 127 S. Ct. 2456, 2466-68 (2007) (holding that an appellate
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No. 07-20715
court may apply a presumption of reasonableness to a within-guidelines
sentence).
The district court must make an individualized assessment based on the
facts presented and must start by calculating the applicable guidelines range.
Gall, 128 S. Ct. at 596-97. This individualized assessment “necessarily means
that the sentencing court is free to conclude that the applicable [g]uidelines
range gives too much or too little weight to one or more factors, either as applied
in a particular case or as a matter of policy.” United States v. Williams, 517 F.3d
801, 809 (5th Cir. 2008). In Kimbrough, the Court reiterated what it had
conveyed in Rita; a sentencing court may vary from the Guidelines based solely
on policy considerations, including disagreements with the Guidelines, if the
court feels that the guidelines sentence fails properly to reflect § 3553(a)
considerations. Kimbrough, 128 S. Ct. at 570; see also Williams, 517 F.3d at 809-
10 & n.42 (discussing Kimbrough’s holding). Appellate review is highly
deferential as the sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) with respect to a particular defendant. Gall,
128 S. Ct. at 597. An appeals court may not require “extraordinary
circumstances” to justify a sentence outside the guidelines range. Id. at 595.
With these considerations in mind, we turn to Campos’s arguments. A
threshold question is whether he preserved his arguments for review. Campos
argued that the 16-level enhancement under § 2L1.2 resulted in a sentence that
was excessive considering, inter alia, the nature of his prior offense, his youth
at the time of the prior offense, and his subsequent conduct. He did not,
however, argue that § 2L1.2 itself is flawed because it was not adopted as part
of the usual Sentencing Commission procedure. Further, nothing in the record
indicates that the district court was restricted by our precedent from considering
Campos’s arguments for a non-guidelines sentence. Campos likewise did not
object to the district court’s reference to his loss of ability to seek citizenship.
Thus, we review these arguments for plain error. See United States v.
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No. 07-20715
Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005). Campos must demonstrate (1)
error, (2) that is clear or obvious, and (3) that affects substantial rights. Id. If
these conditions are met, this court may exercise its discretion to correct the
error if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
We conclude that there is no reversible plain error. The record
demonstrates that the district court was aware of Campos’s arguments for a non-
guidelines sentence based on his particular circumstances. The court
nevertheless concluded that the Guidelines provided the appropriate sentencing
range. Further, our precedent did not preclude the district court from deviating
from the guidelines range based on a conclusion that the 16-level enhancement
resulted in an excessive sentence in light of Campos’s arguments. See United
States v. Gomez-Herrera, 523 F.3d 554, 557 n.1 (5th Cir. 2008). As for the
district court’s reference to Campos’s loss of permanent resident status and loss
of opportunity to seek citizenship, we see no plain error warranting reversal.
The district court’s decision to sentence Campos according to the
Guidelines is entitled to deference and the resulting within-guidelines sentence
is entitled to a presumption of reasonableness. See Alonzo, 435 F.3d at 554.
Campos has failed to overcome that presumption. To the extent that Campos
argues generally that the sentence is unreasonable based on the factors that he
did present to the district court, we discern no reason to disturb the district
court’s exercise of its discretion. See id.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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