United States v. Pedro Vargas-Santillan ( 2014 )

Case: 13-51063 Document: 00512880225 Page: 1 Date Filed: 12/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51063
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 23, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
PEDRO FRANCISCO VARGAS-SANTILLAN,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-1373-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Pedro Francisco Vargas-Santillan appeals the 33-month within-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51063 Document: 00512880225 Page: 2 Date Filed: 12/23/2014
No. 13-51063
guidelines sentence imposed in connection with his conviction of illegal reentry
following deportation. He challenges the substantive reasonableness of his
sentence, urging that the sentence is longer than necessary to accomplish the
objectives of 18 U.S.C. § 3553(a). In support, he questions the application of
U.S.S.G. § 2L1.2, the illegal-reentry guideline, in calculating his range, assert-
ing that it double-counts his 1985 conviction, lacks an empirical basis, and fails
to account for the nonviolent nature of his offense, which he asserts is an “inter-
national trespass.” Also, he claims that the district court failed to account for
his personal circumstances and the circumstances of this offense. Specifically,
he notes that he returned to the United States for his family.
Because Vargas-Santillan did not object to reasonableness, we review for
plain error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
Although Vargas-Santillan challenges the application of the presumption of
reasonableness as applied to his within-guidelines sentence under § 2L1.2, he
acknowledges that the issue is foreclosed and raises it only to preserve it for
possible future review. See United States v. Mondragon-Santiago, 564 F.3d
357, 366−67 (5th Cir. 2009).
The fact that § 2L1.2 lacks an empirical basis and double-counts convic-
tions does not render a within-guidelines sentence unreasonable. United
States v. Duarte, 569 F.3d 528, 529−30 (5th Cir. 2009). With respect to the age
of the conviction, the “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,
660 F.3d 231, 234 (5th Cir. 2011). There is no merit to the contention that the
guidelines fail to account for the nonviolent nature of an illegal-reentry offense.
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
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Case: 13-51063 Document: 00512880225 Page: 3 Date Filed: 12/23/2014
No. 13-51063
The district court considered Vargas-Santillan’s arguments for a lesser
sentence but found that a sentence at the bottom of the range was appropriate.
Vargas-Santillan’s contentions regarding his mitigating factors and benign
motive do not rebut the presumption of reasonableness and fail to show that
the court plainly erred. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009); United States v. Gomez-Herrera, 523 F.3d 554, 565−66 (5th Cir. 2008).
AFFIRMED.
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