Case: 11-51122 Document: 00511998522 Page: 1 Date Filed: 09/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 25, 2012
No. 11-51122
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS OMAR RODRIGUEZ-GONZALEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1666-1
Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Luis Rodriguez-Gonzalez (Rodriguez) appeals following his guilty plea
conviction of illegal reentry of the United States after removal. He was
sentenced to a 48-month term of imprisonment and to a three-year term of
supervised release. Rodriguez contends that the 48-month sentence is
substantively unreasonable because it is greater than necessary to meet the
sentencing goals set forth in 18 U.S.C. § 3553(a). Specifically, he asserts that the
application of the illegal reentry guideline, U.S.S.G. § 2L1,2, resulted in an
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51122 Document: 00511998522 Page: 2 Date Filed: 09/25/2012
No. 11-51122
unreasonable sentence because his 1998 residential burglary conviction is less
serious than other offenses that also qualify for the 16-level enhancement,
because the previous conviction was remote in time, and, because, given his
youth when he committed the residential burglary, the prior offense does not
provide an accurate measure of either the seriousness of the offense or his risk
of recidivism. He also contends that the seriousness of the instant illegal reentry
offense is mitigated by the fear he felt in Mexico, where he was the victim of
violence following his removal.
Rodriguez concedes that he did not object to his sentence as unreasonable,
but he asserts that no objection is not required to preserve the issue for appellate
review. We have held that a defendant’s failure to object at sentencing to the
reasonableness of his sentence triggers plain error review. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). However, we need not determine
whether plain error review is appropriate because Rodriguez’s arguments fail
even under the ordinary standard of review.
Because Rodriguez’s sentence was within the properly calculated
guidelines range of 46 to 57 months of imprisonment, it is entitled to a
presumption of reasonableness. See United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008). “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). Rodriguez contends that the
presumption of reasonableness should not be applied to a sentence calculated
under § 2L1.2, since the illegal reentry guideline is not supported by empirical
data or national experience. However, as he concedes, this argument is
foreclosed by our precedent. See United States v. Duarte, 569 F.3d 528, 530 (5th
Cir. 2009).
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Case: 11-51122 Document: 00511998522 Page: 3 Date Filed: 09/25/2012
No. 11-51122
The record reflects that the district court heard the mitigating arguments
offered by Rodriguez and considered them when determining his sentence. The
district court rejected Rodriguez’s request for a downward variance; it likewise
rejected the Government’s argument for a sentence of at least 53 months of
imprisonment. The district court instead concluded that a 48-month sentence
was appropriate in light of the § 3553(a) factors. We have recognized that “the
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” Campos-Maldonado,
531 F.3d at 339. Rodriguez has failed to demonstrate that the district court
failed to give the proper weight to any particular § 3553(a) factor or that his
sentence “represents a clear error of judgment in balancing sentencing factors.”
Cooks, 589 F.3d at 186. Therefore, he has failed to rebut the presumption of
reasonableness that is accorded to his within-guidelines sentence. See id.
AFFIRMED.
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