Case: 11-51133 Document: 00511940143 Page: 1 Date Filed: 07/31/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 31, 2012
No. 11-51133
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EVERARDO AGUILAR-ORTIZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-411-2
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Everardo Aguilar-Ortiz was convicted by a jury of conspiracy to transport
illegal aliens and illegal transportation of aliens for commercial advantage or
private financial gain. Aguilar-Ortiz argues that his within-guidelines sentence
is unreasonable in that it was greater than necessary to accomplish the goals of
sentencing set forth in 18 U.S.C. § 3553(a). Relying on Kimbrough v. United
States, 552 U.S. 85, 109 (2007), Aguilar-Ortiz contends that U.S.S.G. § 2L1.1 is
flawed and not based on “‘empirical data and national experience.’” As such, he
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51133 Document: 00511940143 Page: 2 Date Filed: 07/31/2012
No. 11-51133
argues that his within-guidelines sentence should not be afforded the
presumption of reasonableness. He also contends that the flawed Guideline
overstates the seriousness of his offense because “it does not equally apportion
the number of unlawful aliens, smuggled, transported, or harbored and as a
result effectively punishes one for not smuggling, transporting, or harboring
more aliens.” Aguilar-Ortiz also argues that the Guidelines do not take into
consideration his history and personal characteristics.
Aguilar-Ortiz recognizes that United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009), forecloses his argument that because the
Guideline is not empirically grounded, the presumption of reasonableness should
not be applied to a sentence calculated under § 2L1.1. Aguilar-Ortiz further
recognizes that because he did not object to the reasonableness of his sentence
before the district court, this court reviews his argument under the plain error
standard. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007);
Puckett v. United States, 556 U.S. 129, 135 (2009).
The district court expressly stated that it had also considered the § 3553(a)
factors and found “that a fair and reasonable sentence can be achieved with a
sentence selected from within the advisory range.” Aguilar-Ortiz does not offer
any specific argument that the district court considered any irrelevant or
improper factors, that it made an error in judgment in weighing the § 3553(a)
factors, or that it did not account for a factor that should receive significant
weight. Given the deference owed to the district court’s sentence determination,
see Gall v. United States, 552 U.S. 38, 51-52 (2007), his conclusional assertion
that his sentence is unreasonable in light of the § 3553(a) factors is insufficient
to establish plain error and to rebut the presumption that the sentence is
reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). The district court’s judgment
is AFFIRMED.
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