Case: 11-50772 Document: 00511871289 Page: 1 Date Filed: 05/30/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 30, 2012
No. 11-50772
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HUMBERTO LIMAS-CALDERA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-752-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Humberto Limas-Caldera appeals from his conviction of attempted illegal
reentry and making a false claim of United States citizenship. He contends that
his sentence, which fell within his guidelines sentencing range, was
substantively unreasonable. He further contends, for the first time on appeal,
that the lack of an empirical basis for the illegal reentry Guideline deprives his
sentence of a presumption of reasonableness on appeal, and correctly concedes
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-50772
that this argument is foreclosed by United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009).
As for the substantive reasonableness of his sentence, Limas-Caldera
asserts that his sentence is greater than necessary to reflect the seriousness of
his offense, provide just punishment, deter future crimes, or protect the public.
He argues that this is so because the consideration of his Kansas offense of
possession with intent to sell marijuana both for his criminal history score and
his offense level amounted to double-counting; because his motive for attempting
to reenter the United States was benign; because he had maintained a steady
work history despite his drug problems; because the longest previous term of
imprisonment he had served was 20 months long; and because his family
circumstances were such that he would almost certainly never return to the
United States.
We review sentences for reasonableness by engaging in a bifurcated
review. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). First, we must ensure
that the sentencing court committed no significant procedural error, such as
“failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence-including an explanation for any deviation from the Guidelines
range.” Gall, 552 U.S. at 51. If the sentencing decision is procedurally sound,
we then consider the “substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.” Id. Here, only the substantive reasonableness
of the sentence is disputed.
We afford a within-range sentence a rebuttable presumption of
reasonableness. See United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
The presumption is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
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No. 11-50772
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors. United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).
The reasons asserted by Limas-Caldera do not rebut the presumption of
reasonableness given to his within-range sentence. See id. He has not shown
that his sentence is substantively unreasonable under the abuse of discretion
standard. See Gall, 552 U.S. at 51.
AFFIRMED.
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