IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2009
No. 08-51003
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE RIVAS-MORA, also known as George Rivas-Mora,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-1888-1
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Jorge Rivas-Mora appeals the 41-month term of imprisonment imposed for
his guilty plea conviction of violating 8 U.S.C. § 1326(a) and (b) by being found
in the United States without permission, following removal. He argues that his
sentence, which fell within his advisory guidelines range, is unreasonable
because it was greater than necessary to achieve the sentencing goals set forth
in 18 U.S.C. § 3553(a). Rivas-Mora contends that a shorter sentence was
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-51003
appropriate in his case in light of his long residency in the United States; his
motive for committing the offense; his lack of prior reentry offenses; and his lack
of knowledge that a reentry offense carried such a harsh sentence. Rivas-Mora
also contends that a shorter sentence was appropriate because he presented a
low risk of recidivism in light of his family ties in Mexico.
Relying on Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), and
Rita v. United States, 551 U.S. 338, 347-48 (2007), Rivas-Mora contends that the
appellate presumption of reasonableness accorded sentences imposed within a
defendant’s properly calculated advisory sentencing guidelines range should not
apply to sentences that were calculated under Guidelines not derived from
empirical data and national experience. However, this court has rejected that
argument. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), cert.
denied, 2009 WL 3162196 (Oct. 5, 2009) (No. 09-6195); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), cert. denied, 2009
WL 1849974 (Oct. 5, 2009) (No. 08-11099). The appellate presumption of
reasonableness is applicable in this case. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006).
In determining Rivas-Mora’s sentence, the district court judge considered
the advisory sentencing-guidelines range, the information in Rivas-Mora’s
presentence report, and the § 3553(a) factors. The district court judge
considered the arguments presented at sentencing and determined that a
guideline sentence would be appropriate. Rivas-Mora’s arguments do not
establish that the district court plainly erred or abused its discretion in imposing
that sentence. See Gall v. United States, 128 S. Ct. 586, 597 (2007). Rivas-Mora
has not rebutted the presumption of reasonableness that attaches to his within-
guidelines sentence. See Alonzo, 435 F.3d at 554.
The judgment of the district court is AFFIRMED.
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