Case: 12-50279 Document: 00512092681 Page: 1 Date Filed: 12/21/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2012
No. 12-50279
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE MIGUEL POLO VILLALOBOS, also known as Jose Polo, also known as
Jose Miguel Polo Billolobos,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-1451-1
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Miguel Polo Villalobos appeals his 46-month within-Guidelines
sentence pursuant to his guilty-plea conviction for illegal reentry. Defendant
contends: his sentence is greater than necessary to meet the sentencing goals
of 18 U.S.C. § 3553(a); the advisory Guidelines sentencing range was too severe
because the district court failed to consider his benign motive for returning, his
stated intention not to return, or that his reentry offense was, at bottom, a mere
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50279 Document: 00512092681 Page: 2 Date Filed: 12/21/2012
No. 12-50279
trespass; he deserved a lesser sentence based upon the disparity in fast-track
early disposition programs; and his sentence is not entitled to a presumption of
reasonableness because the illegal-reentry advisory sentencing Guideline,
§ 2L1.2, is not empirically based, given that it double-counts a defendant’s
criminal history.
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
Defendant does not claim procedural error. And, because he failed to object in
district court to the substantive reasonableness of his sentence, review of the
numerous issues raised here is only for plain error. United States v. Peltier, 505
F.3d 389, 392 (5th Cir. 2007).
Defendant asserts plain-error review should not apply because no objection
is required to preserve the issue of the substantive reasonableness of a sentence.
As he acknowledges, this contention is foreclosed by Peltier; he raises it only to
preserve it for possible further review. To show plain error, Defendant must
establish that the district court committed a clear or obvious error, which
affected his substantial rights. Id. He fails to do so.
Defendant concedes his double-counting and fast-track contentions are
foreclosed by our precedent. E.g., United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009). He raises them only to preserve them for possible further
review.
Our court has also rejected the contention that a within-Guidelines
sentence under Guideline § 2L1.2 is unreasonable because illegal reentry is a
2
Case: 12-50279 Document: 00512092681 Page: 3 Date Filed: 12/21/2012
No. 12-50279
mere trespass offense. United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006).
Defendant’s sentence, which is at the bottom of the applicable advisory
Guidelines sentencing range, is presumed reasonable. United States v. Newson,
515 F.3d 374, 379 (5th Cir. 2008). His disagreement with the propriety of his
sentence and the district court’s weighing of the § 3553(a) factors is insufficient
to rebut this presumption. E.g., United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008).
AFFIRMED.
3