REVISED JULY 16, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2009
No. 08-50680
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAIME PENA-GOMEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-3210-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jamie Pena-Gomez appeals his sentence after his guilty plea conviction for
illegal reentry following deportation. Because Pena previously had been
convicted of importation of a controlled substance, his offense level was adjusted
upward by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). The district
court denied Pena’s request for a downward variance for the guidelines range
*
Pursuant to Fifth Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Fifth Circuit Rule 47.5.4.
No. 08-50680
and sentenced him to forty-six months of imprisonment and three years of
supervised release.
Pena contends that his sentence was greater than necessary to accomplish
the sentencing goals of 18 U.S.C. § 3553(a)(2). Pena concedes that this court
ordinarily applies a presumption of reasonableness to within-guidelines
sentences. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th
Cir.), cert. denied, 129 S. Ct. 328 (2008); United States v. Gomez-Herrera, 523
F.3d 554, 565–66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Citing
Kimbrough v. United States, 128 S. Ct. 558, 574–75 (2007), Pena contends that
the presumption should not apply in this case because § 2L1.2 is not empirically
supported. Because Pena did not raise his current empirical argument in the
district court, it is reviewed for plain error only. See United States v. Garza-
Lopez, 410 F.3d 268, 272 (5th Cir. 2005).
Pena’s reliance on Kimbrough is misplaced as the Court did not address
the applicability of the presumption of reasonableness. The district court
considered Pena’s request for leniency in light of his personal circumstances, but
ultimately determined that a sentence within the guidelines range was
appropriate. Pena’s within-guidelines sentence is presumptively reasonable, and
Pena has not shown that his sentence is unreasonable. See Campos-Maldonado,
531 F.3d at 338; Gomez-Herrera, 523 F.3d at 565–66.
Pena argues that the district court abused its discretion by imposing a
three-year term of supervised release. He contends that the court failed to make
an individualized assessment of the propriety of supervised release and simply
imposed it based on its usual practice in illegal reentry cases. Specifically, Pena
avers that the court failed to account for the fact that he will likely be deported
from the United States following completion of his term of imprisonment,
thereby making it impossible to fulfill the rehabilitative or monitoring goals of
supervised release. He contends that the district court’s rejection of his request
for no term of supervised release thus appeared to be aimed at “deterring
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No. 08-50680
another illegal reentry” or “reserving additional punishment” should he return,
both of which he maintains are impermissible bases for imposing a term of
supervised release.
The district court may impose upon a defendant a term of supervised
release as part of its sentencing decision. See 18 U.S.C. § 3583(a). This court
reviews the portion of a sentencing decision related to an imposed imprisonment
term based upon the Sentencing Guidelines under a deferential abuse of
discretion standard. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008).
Pena’s three-year supervised release term was authorized by statute and
was within the applicable guideline ranges. See §§ 3583(b)(2), 3559(a)(3); 8
U.S.C. § 1326(b)(2); U.S.S.G. §§ 5D1.1(a), 5D1.2(a)(2). Although Pena is correct
that a district court, in fashioning a sentence, is to treat “every convicted person
as an individual and every case as [] unique,” “[t]he uniqueness of the individual
case, however, does not change the deferential abuse-of-discretion standard of
review that applies to all sentencing decisions.” Gall v. United States, 128 S. Ct.
586, 598 (2007) (citation and quotation marks omitted); see also United States
v. Rodriguez-Rodriguez, 530 F.3d 381, 384–85 (5th Cir. 2008). Because the
district court’s supervised release term was within both the statutory and
applicable guideline ranges, it is presumptively reasonable, and this court “will
infer that the judge has considered all the factors for a fair sentence set forth in
the Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005); see
also Rita v. United States, 127 S. Ct. 2456, 2463–65 (2007). The judgment of the
district court is AFFIRMED.
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