Case: 12-50751 Document: 00512264652 Page: 1 Date Filed: 06/06/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 6, 2013
No. 12-50751
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MILTON JOEL ANDARADE-VALLE, also known as Milton Joel Andrade-Valle,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-1853-1
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Milton Joel Andarade-Valle challenges his 90-month, within-Guidelines
sentence as substantively unreasonable because it is greater than necessary to
meet the sentencing goals of 18 U.S.C. § 3553(a). He contends: the illegal
reentry Guideline, § 2L1.2, is unreasonable because it lacks an empirical basis;
under the Guideline, his prior drug-trafficking conviction was used to increase
his offense level and criminal-history score, resulting in double counting; the
advisory Guidelines sentencing range failed to account for his mitigating
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50751
personal history and characteristics; and a presumption of reasonableness
should not apply to a within-Guidelines sentence imposed under § 2L1.2. He
concedes this last issue is foreclosed, see United States v. Duarte, 569 F.3d 528,
530-31 (5th Cir. 2009), and raises it only to preserve it for possible further
review.
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 on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (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).
Because Andarade does not claim procedural error, we consider only the
“substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard”. Gall, 552 U.S. at 51.
Andarade’s claiming § 2L1.2 is unreasonable because it is not empirically
based is foreclosed by our court’s precedent. See Duarte, 569 F.3d at 529-31.
Also foreclosed is his contending a sentence imposed pursuant to § 2L1.2 is
greater than necessary to meet § 3553(a)’s goals as a result of any double
counting inherent in that Guideline. See id. at 529-31. Further, the record
reflects the court balanced Andarade’s mitigation factors against other § 3553(a)
factors, including the need for adequate deterrence and the need to protect the
public from further crimes. The court stated a within-Guidelines sentence of 90
months was “not only appropriate but necessary to serve all the statutory
purposes that [the court] outlined”.
Andarade has failed to show his within-Guidelines sentence “does not
account for a factor that should receive significant weight, . . . gives significant
weight to an irrelevant or improper factor, or . . . represents a clear error of
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No. 12-50751
judgment in balancing sentencing factors”. United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009). The presumption of reasonableness will not be disturbed.
E.g., Cooks, 589 F.3d at 186; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
AFFIRMED.
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