Case: 10-11125 Document: 00511918784 Page: 1 Date Filed: 07/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 12, 2012
No. 10-11125
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL GARCIA-CABRERA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-158-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Miguel Garcia-Cabrera appeals the 51-month sentence imposed following
his guilty-plea conviction for illegal reentry following previous deportation. He
asserts that his within-guidelines sentence is unreasonable because it is greater
than necessary to meet the goals of 18 U.S.C. § 3553(a). Garcia-Cabrera argues
that the Guidelines that govern illegal reentry offenses produce unreasonable
sentences because they result in double-counting of criminal history and do not
properly account for the non-violent nature of the offense. He also contends that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11125 Document: 00511918784 Page: 2 Date Filed: 07/12/2012
No. 10-11125
he deserved a lesser sentence in light of the disparity in fast-track programs in
certain districts. Garcia-Cabrera further asserts that his sentence did not reflect
his personal history and characteristics.
The Government maintains that the instant appeal should be dismissed
because the underlying notice of appeal was untimely. The record supports the
Government’s contention. The instant notice of appeal, which Garcia-Cabrera
filed after his initial appeal was dismissed for want of prosecution, was filed
after the expiration of the time for filing a timely notice of appeal and beyond the
time during which the district court could have extended the time for filing a
notice of appeal. See FED. R. APP. P. 4(b)(1)(A)(i), (b)(4). Garcia-Cabrera did not
seek reinstatement of the district court’s judgment and set forth no justification
for his second attempt to appeal the district court’s judgment. He also did not
seek leave to file an out-of-time appeal pursuant to 28 U.S.C. § 2255. Thus, we
dismiss Garcia-Cabrera’s appeal as untimely filed. See Burnley v. City of San
Antonio, 470 F.3d 189, 192 n.1 (5th Cir. 2006).
Even if we pretermitted the issue of whether Garcia-Cabrera filed a timely
notice of appeal and addressed the merits of the case, his appeal would fail. See
United States v. Martinez, 496 F.3d 387, 389 (5th Cir. 2007). His arguments
consistently have been rejected by this court. See United States v. Duarte, 569
F.3d 528, 529-31 & n.2 (5th Cir. 2009) (rejecting argument that a sentence is
unreasonable because U.S.S.G. § 2L1.2 results in double-counting of a prior
criminal conviction); United States v. Gomez-Herrera, 523 F.3d 554, 563 n. 4(5th
Cir. 2008) (dismissing argument that guidelines range was excessive because it
caused unwarranted disparities based on the availability of fast-track program);
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (holding that
argument that illegal reentry is not a violent crime does not justify disturbing
a presumptively reasonable sentence). The record also supports that the district
court’s sentencing decision was based upon an individualized assessment of the
facts, in light of the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 49-
2
Case: 10-11125 Document: 00511918784 Page: 3 Date Filed: 07/12/2012
No. 10-11125
51 (2007). Accordingly, Garcia-Cabrera has not rebutted the presumption of
reasonableness that attaches to his within-guidelines sentence. See United
States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
The appeal is DISMISSED as untimely.
3