Case: 09-50269 Document: 00511014870 Page: 1 Date Filed: 01/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2010
No. 09-50269
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NICOLAS ARROYO-CARBAJAL, also know as Nene Billarruel,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:09-CR-4-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Nicolas Arroyo-Carbajal (Arroyo) appeals the 86-month sentence imposed
by the district court following entry of a guilty plea to a charge under 8 U.S.C.
§ 1326 for being illegally present in the United States. He argues that his
sentence is substantively unreasonable under 18 U.S.C. § 3553(a) because
U.S.S.G. § 2L1.2 is not empirically based and gives excessive weight to a
defendant’s prior convictions in setting the offense level, thereby effectively
double-counting the defendant’s criminal record via his offense level and his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50269 Document: 00511014870 Page: 2 Date Filed: 01/28/2010
No. 09-50269
criminal history score. He contends that the sentence fails to take into account
his benign motive for returning to the United States. Arroyo asserts, in
addition, that his sentence is greater than necessary to achieve the goals of
§ 3553(a). Although Arroyo acknowledges that plain error review applies, he has
preserved the issue whether a failure to object to the reasonableness of a
sentence upon its imposition requires plain error review. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
To show plain error, Arroyo must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
We have rejected Arroyo’s argument that Kimbrough v. United States, 552
U.S. 85, 109-10 (2007), dictates that the appellate presumption of
reasonableness we accord to sentences imposed within a properly calculated
advisory sentencing guidelines range should not apply to sentences that were
calculated under Guidelines not derived from empirical data and national
experience. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We have also rejected
Arroyo’s double-counting argument. See Duarte, 569 F.3d at 529-31 & n.11;
Mondragon-Santiago, 564 F.3d at 366-67.
The record shows that the district court based Arroyo’s sentence on the
advisory sentencing guidelines range, the information in the presentence report,
and the § 3553(a) factors. The district court judge implicitly considered the
arguments Arroyo presented at sentencing and determined that a
within-guidelines sentence was appropriate. Arroyo has not shown error, much
less plain error, in the district court’s imposition of sentence, and he has not
rebutted the presumption that his within-guidelines sentence is reasonable. See
2
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No. 09-50269
Gall v. United States, 552 U.S. 38, 50-51 (2007); Rita v. United States, 552 U.S.
338 (2007).
AFFIRMED.
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