United States v. Antonio Rodriguez-Ortiz

Case: 11-50993 Document: 00511945953 Page: 1 Date Filed: 08/06/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 6, 2012
No. 11-50993
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

ANTONIO RODRIGUEZ-ORTIZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1708-1

Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Antonio Rodriguez-Ortiz pleaded guilty without the benefit of a plea
agreement to illegal reentry after having been deported. The district court
sentenced him to a 54-month prison term, which was within the advisory
guidelines range, to be followed by three years of supervised release. Rodriguez-
Ortiz appeals his prison sentence, arguing that it is substantively unreasonable
and greater than necessary to achieve the purposes of sentencing.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50993 Document: 00511945953 Page: 2 Date Filed: 08/06/2012

No. 11-50993

Because Rodriguez-Ortiz did not object to his sentence in the district court,
we review for plain error only. See United States v. Ruiz, 621 F.3d 390, 398 (5th
Cir. 2010). To succeed under this standard, Rodriguez-Ortiz must show an error
that is clear or obvious and that affects his substantial rights, but even so, we
generally will exercise discretion to correct the error only if it “seriously affect[s]
the fairness, integrity, or public reputation of judicial proceedings.” See Puckett
v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks and citation
omitted). We presume that Rodriguez-Ortiz’s within-guidelines sentence is
reasonable. See Ruiz, 621 F.3d at 398.
Rodriguez-Ortiz first complains that the under the Guidelines, his
conviction for alien smuggling was double counted because it increased both his
offense level and his criminal history score and argues that his sentence within
the resulting guidelines range was unreasonable. As Rodriguez-Ortiz concedes
however, we have rejected the argument that this sort of “double counting”
renders a within-guidelines sentence unreasonable. See United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir. 2009).
Observing that the alien smuggling conviction was 11 years old,
Rodriguez-Ortiz argues that it was unreasonable to impose a within-guidelines
sentence when the guidelines range included a 16-level enhancement for such
an old conviction. We have also rejected this argument, determining that “the
staleness of a prior conviction used in the proper calculation of a
guidelines-range sentence does not render a sentence substantively
unreasonable and does not destroy the presumption of reasonableness that
attaches to such sentences.” United States v. Rodriguez, 660 F.3d 231, 234 (5th
Cir. 2011).
Finally, Rodriguez-Ortiz contends that his crime was merely “tantamount
to an international trespass” and thus did not warrant such a harsh sentence.
However, we have upheld a within-guidelines sentence as reasonable despite the

2
Case: 11-50993 Document: 00511945953 Page: 3 Date Filed: 08/06/2012

No. 11-50993

defendant’s argument that illegal reentry is a mere trespass offense. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
The district court heard and understood Rodriguez-Ortiz’s arguments for
a lower sentence and carefully explained its reasons for the sentence it chose,
explicitly rejecting both a downward variance and a sentence at the top of the
guidelines range. Rodriguez-Ortiz has not rebutted the presumption that the
within-guideline sentence that the court selected was reasonable.
AFFIRMED.