Case: 11-51100 Document: 00511934170 Page: 1 Date Filed: 07/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 26, 2012
No. 11-51100
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RUBEN ALBERTO GUERRERO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1638-1
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ruben Alberto Guerrero appeals the within-Guidelines sentence of 57
months of imprisonment imposed following his guilty plea to illegal reentry in
violation of 8 U.S.C. § 1326. Guerrero argues that his sentence is substantively
unreasonable because it is greater than necessary to achieve the sentencing
goals of 18 U.S.C. § 3553(a), particularly in light of the district court’s refusal to
apply a proposed, but not yet enacted, amendment to U.S.S.G. § 2L1.2(b).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51100 Document: 00511934170 Page: 2 Date Filed: 07/26/2012
No. 11-51100
In evaluating a sentence for substantive reasonableness, this court applies
an abuse of discretion standard of review, and within-Guidelines sentences enjoy
a presumption of reasonableness. United States v. Gutierrez-Hernandez, 581
F.3d 251, 254 (5th Cir. 2009). “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 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).
“[T]he staleness of a prior conviction that is used in the proper calculation
of a guidelines-range sentence does not render a sentence substantively
unreasonable[.]” United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011).
Nor does it destroy the presumption of reasonableness that attaches to such a
sentence. Id. Further, a sentence is not substantively unreasonable because a
district court refuses to go below the guidelines range based on an amendment
to the Guidelines that was not applicable at the time of sentencing. See, e.g.,
United States v. Scott, 654 F.3d 552, 557-58 (5th Cir. 2011). The district court
considered, but rejected Guerrero’s attempt to minimize the seriousness of his
prior offenses, noting that Guerrero’s criminal history perhaps even understated
his dangerousness. Guerrero’s purported “benign” motive for illegally returning
to this country also is not sufficient to rebut the appellate presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008). Finally, as to his assertion that the § 3553(a) factors of deterrence
and protection of the public were mitigated, Guerrero has not shown that the
district court made a clear error in balancing those factors against his criminal
history. See Cooks, 589 F.3d at 186.
AFFIRMED.
2