United States v. Jose Barrera-Sanchez ( 2014 )

Case: 14-50379 Document: 00512863284 Page: 1 Date Filed: 12/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50379
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 9, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JOSE LUIS BARRERA-SANCHEZ, also known as Jose Luis Sanchez-Barrera,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1049-1
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Jose Luis Barrera-Sanchez challenges his 42-month, within-Sentencing
Guidelines sentence, imposed following his guilty-plea conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. He contends the sentence is
substantively unreasonable because it is greater than necessary to satisfy the
sentencing goals in 18 U.S.C. § 3553(a). He asserts the advisory Guidelines-
sentencing range is too high because Guideline § 2L1.2 (unlawfully entering or
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50379
remaining in the United States) is not empirically based, and effectively
double-counts his criminal record. He also contends the Guidelines-sentencing
range overstates the seriousness of his nonviolent-reentry offense (only “an
international trespass”) and fails to account for his personal history and
characteristics.
Although post-Booker, the 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 advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, 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). Barrera does not claim
procedural error. He claims only that his sentence is substantively
unreasonable. As stated, that claim is reviewed for abuse of discretion. In
doing so, a rebuttable presumption of reasonableness is applied to a within-
Guidelines sentence. United States v. Mondragon-Santiago, 564 F.3d 357, 367
(5th Cir. 2009) (citations omitted).
Relying on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), and
to preserve the issue for possible further review, Barrera claims the
presumption of reasonableness should not apply because Guideline § 2L1.2
lacks an empirical basis. As Barrera concedes, however, this claim is
foreclosed. E.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
see also Mondragon-Santiago, 564 F.3d at 366-67.
Our court has consistently rejected “double-counting” claims and
assertions that Guideline § 2L1.2 results in excessive sentences because it is
not empirically based. E.g., Duarte, 569 F.3d at 529-31. We also have rejected
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No. 14-50379
Barrera’s only “an international trespass” contention. E.g., United States v.
Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
The district court considered Barrera’s request for a lower sentence.
Barrera, furthermore, has not shown that his sentence: fails to account for a
§ 3553(a) sentencing factor that should receive significant weight, gives
significant weight to an irrelevant or improper factor, or represents a clear
error in judgment in balancing sentencing factors. E.g., United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009) (citation omitted). Mere disagreement with
the propriety of his sentence or with the weight given to § 3553(a) factors does
not suffice to rebut the presumption of reasonableness that attaches to a
within-Guidelines sentence. E.g., United States v. Ruiz, 621 F.3d 390, 398 (5th
Cir. 2010) (citations omitted).
AFFIRMED.
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