United States v. Mario Ibarra-Vera

Case: 11-51120 Document: 00511947886 Page: 1 Date Filed: 08/07/2012

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

FILED
August 7, 2012
No. 11-51120
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

MARIO ALBERTO IBARRA-VERA,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-549-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mario Alberto Ibarra-Vera (Ibarra) was sentenced to a 46-month term of
imprisonment following his guilty plea to illegal reentry of a deported alien. See
8 U.S.C. § 1326. Ibarra argues that his sentence, which is in the middle of his
advisory guidelines range of 41 to 51 months of imprisonment, is unreasonable
because it is greater than necessary as measured by the factors identified in 18
U.S.C. § 3553(a).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51120 Document: 00511947886 Page: 2 Date Filed: 08/07/2012

No. 11-51120

Ibarra does not contend that the district court committed any procedural
error in imposing his sentence. Thus, our review is confined to whether the
sentence is substantively unreasonable under an abuse-of-discretion standard.
See Gall v. United States, 552 U.S. 38, 49-51 (2007). We have consistently
rejected Ibarra’s “double counting” argument and his argument that U.S.S.G.
§ 2L1.2 results in an excessive sentence because it is not empirically based. See
United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009). We also have
rejected the “international trespass” argument that Ibarra asserts. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (per curiam).
As to Ibarra’s argument that the Sentencing Guidelines failed to account
for the circumstances of his offense or his history, at sentencing, the district
court considered the advisory guidelines range, Ibarra’s objection to the
presentence report, Ibarra’s arguments in support of a variance from the
advisory guidelines range, Ibarra’s statement in allocution, the Government’s
request for a sentence at the bottom of the guidelines range, and the factors
identified in § 3553, determining that a 46-month sentence was appropriate.
The record reflects that the district court made an individualized determination
at sentencing based on the facts presented and in light of the § 3553(a) factors.
See Gall, 552 U.S. at 50.
“[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see Rita v. United States, 551 U.S. 338, 347 (2007). Ibarra argues, for the
purpose of preservation of the issue for possible further review by the Supreme
Court, that a sentence imposed under § 2L1.2 should not be accorded that
presumption “because, without empirical basis, the guideline double-counts
criminal history.” As he concedes, however, his argument is foreclosed by United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).

2
Case: 11-51120 Document: 00511947886 Page: 3 Date Filed: 08/07/2012

No. 11-51120

Ibarra has not shown that the district court failed to give proper weight
to his arguments or to any particular § 3553(a) factor. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). He has thus failed to rebut the
presumption of reasonableness that is accorded his within-guidelines sentence.
See id.; United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
Accordingly, the district court’s judgment is AFFIRMED.