Case: 11-51088 Document: 00512009569 Page: 1 Date Filed: 10/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 4, 2012
No. 11-51088
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GERARDO RIVAS-GOMEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1755-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Gerardo Rivas-Gomez (Rivas) pleaded guilty to
illegally reentering the United States following deportation and received a
within-guidelines sentence of 46 months in prison, to be followed by a three-year
term of supervised release. On appeal, Rivas argues that the sentence imposed
is substantively unreasonable because it is greater than necessary to satisfy the
statutory sentencing goals of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-51088
We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007). If the district court imposes a sentence within a
properly calculated guidelines range, the sentence is entitled to a rebuttable
presumption of reasonableness. United States v. Newson, 515 F.3d 374, 379 (5th
Cir. 2008). “The presumption is rebutted only on 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).
Rivas asserts that the appellate presumption of reasonableness should not
apply to his within-guidelines sentence because the illegal reentry Guideline,
U.S.S.G. § 2L1.2, was not developed through empirical study. He concedes,
however, that this contention is foreclosed by United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009). Rivas raises the question to preserve it for possible
further review.
In addition, Rivas complains that the guidelines range overstated the
seriousness of his offense. He points to his benign reasons for returning to the
United States. He also argues that his prior burglary conviction, which resulted
in a 16-level enhancement, was too old to qualify for criminal history points and
that if his sentencing had occurred one week later, he would have received only
a 12-level enhancement. Rivas maintains that the age of his burglary conviction,
combined with his relatively moderate criminal history, warranted a sentence
below the applicable guidelines range.
The district court considered the factors asserted by Rivas and elected to
impose a within-guidelines sentence. “[T]he 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,
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Case: 11-51088 Document: 00512009569 Page: 3 Date Filed: 10/04/2012
No. 11-51088
660 F.3d 231, 234 (5th Cir. 2011). Rivas’s disagreement with the district court’s
weighing of the applicable sentencing factors does not show a “clear error of
judgment in balancing sentencing factors” and thus does not overcome the
presumption. Cooks, 589 F.3d at 186; see United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008). Consequently, the judgment of the district
court is AFFIRMED.
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