Case: 16-50107 Document: 00513786512 Page: 1 Date Filed: 12/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50107 FILED
Summary Calendar December 6, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER RODRIGUEZ-LOPEZ, also known as Juan Chairez-Lopez,
Defendant-Appellant
___________________________________
Cons. w/No. 16-50259
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER RODRIGUEZ-LOPEZ, also known as Juan Charez-Gonzalez, also
known as Juan Charez Gonzalez, also known as Javier Rodriguez Lopez,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-1635-1
USDC No. 3:10-CR-1980-1
Case: 16-50107 Document: 00513786512 Page: 2 Date Filed: 12/06/2016
No. 16-50107
Cons. w/No. 16-50259
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Javier Rodriguez-Lopez appeals the 24-month sentence he received
following his guilty plea conviction for illegal reentry, as well as the consecutive
21-month sentence he received following the revocation of his supervised
release. He asserts that his combined sentence of 45 months is substantively
unreasonable, as it is greater than necessary to achieve the goals of 18 U.S.C.
§ 3553(a). Rodriguez-Lopez argues that this is so because the illegal-reentry
Guideline—U.S.S.G. § 2L1.2—lacks an empirical basis, because it effectively
double counts his criminal history, because illegal reentry is a nonviolent
offense, and because the district court failed to adequately consider his
personal history and characteristics, including his benign reasons for reentry.
When, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is presumptively reasonable. United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To rebut this presumption,
Rodriguez-Lopez must show “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.” Id.
As he acknowledges, Rodriguez-Lopez’s argument that the presumption
of reasonableness should not apply to his illegal-reentry sentence because
U.S.S.G. § 2L1.2 lacks an empirical basis is foreclosed, and he raises it only to
preserve it for further review. See United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009). We likewise have previously rejected the
* 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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Case: 16-50107 Document: 00513786512 Page: 3 Date Filed: 12/06/2016
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contention that a within-guidelines sentence is unreasonable because § 2L1.2
lacks an empirical basis and effectively double counts prior convictions. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); Mondragon-
Santiago, 564 F.3d at 366-67 & n.7. Also, we have not been persuaded by the
claim that the Sentencing Guidelines do not take into account the nonviolent
nature of an illegal-reentry offense. See United States v. Juarez-Duarte, 513
F.3d 204, 212 (5th Cir. 2008). Rodriguez-Lopez’s alleged benign motive for
returning to this country is insufficient to rebut the presumption of
reasonableness attached to his within-guidelines sentence. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
Insofar as Rodriguez-Lopez challenges the fact that his revocation
sentence was ordered to be served consecutively to his non-revocation sentence,
his challenge is unavailing. Because his 21-month revocation sentence falls
within the applicable advisory policy range and is consistent with the mandate
of U.S.S.G § 7B1.3(f), p.s., it is entitled to a presumption of reasonableness.
See United States v. Lopez-Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008).
Rodriguez-Lopez has made no effort to rebut the presumption of
reasonableness afforded his revocation sentence. See Cooks, 589 F.3d at 186.
The judgment of the district court is AFFIRMED.
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