IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2009
No. 09-50166
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SERGIO COVARRUBIAS-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-3223-1
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Sergio Covarrubias-Garcia appeals the 30-month sentence imposed
following his conviction on a guilty plea to being an alien found unlawfully in the
United States after previously having been removed. See 8 U.S.C. § 1326. He
contends the sentence imposed by the district court was unreasonable because:
the sentence was greater than necessary to meet the goals of 18 U.S.C. § 3553(a);
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-50166
and, the advisory guidelines range overstated the seriousness of his offense,
resulting in a sentence too severe for his crime, which he characterizes as merely
an “international trespass”.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard (if the issue is preserved in district court), the district court
must still properly calculate the guideline-sentencing range for use in deciding
on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, its application of the guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
As noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error”. Id. at 753. If, as in this case, there
is no such error, we then review the substantive reasonableness of the sentence
imposed, as noted above, for an abuse of discretion. Id. at 751-53. (There was
no objection in district court that the sentence is not reasonable. Because the
contention fails under our usual standard of review, we need not decide whether
review should be only for plain error.)
Because it is within the properly calculated guidelines range, Covarrubias’
sentence is presumed to be reasonable. See Rita v. United States, 551 U.S. 338,
346-47 (2007). Covarrubias asserts the lack of an empirical basis for U.S.S.G.
§ 2L1.2 (unlawfully entering or remaining in the United States) should preclude
this presumption; but, as he concedes, this contention is foreclosed by our court’s
precedent. See United States v. Mondragon-Santiago, 564 F.3d 357, 365–67 (5th
Cir.), cert. denied, 130 S. Ct. 192 (2009).
The district court considered Covarrubias’ requests for a more lenient
sentence. His contentions that such a sentence would have met § 3553(a)’s goals
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No. 09-50166
and that his offense level overstated the seriousness of his crime are insufficient
to overcome the presumption of reasonableness of his within-guidelines
sentence. See Gall, 552 U.S. at 51 (“The fact that the appellate court might
reasonably [conclude] that a different sentence [is] appropriate is insufficient to
justify reversal of the district court.”); United States v. Aguirre-Villa, 460 F.3d
681, 683 (5th Cir. 2006) (rejecting contentions that sentence was unreasonable
where defendant asserted that his crime was merely “an international trespass”
and that his within-guidelines sentence was too severe for the crime).
AFFIRMED.
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