United States v. Jose Dehijar-Rodriguez ( 2015 )

Case: 14-50352 Document: 00512894577 Page: 1 Date Filed: 01/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50352
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 8, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JOSE MANUEL DEHIJAR-RODRIGUEZ, also known as Jose Manuel
Dahijar-Rodriguez,
Defendant - Appellant
Cons. w/ No. 14-50353
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE MARBEL DAHIJAR-RODRIGUEZ,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:08-CR-822-1
USDC No. 2:13-CR-1044-1
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Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Jose Manuel Dehijar-Rodriguez challenges the consecutive sentences
imposed following his guilty-plea conviction for illegal reentry into the United
States after removal, in violation of 8 U.S.C. § 1326, and the revocation of his
prior term of supervised release. He asserts, as he did in district court, that
his combined 82-month sentence is greater than necessary to meet the goals of
18 U.S.C. § 3553(a) and is, therefore, substantively unreasonable.
Along that line, he contends the presumption of reasonableness should
not apply because: advisory-Sentencing Guideline § 2L1.2, the illegal reentry
Guideline, lacks an empirical basis; it double-counts his criminal history; and
it overstates the seriousness of his offense, which, according to him, is
essentially an international trespass. He also notes that his illegal-reentry
conviction is less serious than his previous convictions, yet the sentence
imposed in this matter exceeds the sentence imposed in his previous cases. He
further contends the sentence fails to reflect 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
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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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).
The 71-month sentence imposed for Dehijar’s illegal reentry offense was
within the advisory Guidelines-sentencing range and is, therefore, entitled to
a presumption of reasonableness. E.g., United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006). As Dehijar concedes, his contention that Guideline § 2L1.2
is not empirically based is foreclosed, along with his double-counting and
international-trespass assertions. E.g., United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006). (He raises the lack-of-empirical-basis claim only to preserve it for
possible further review.)
The district court considered, but rejected, Dehijar’s attempt to minimize
the seriousness of his offenses, noting his history of criminal conduct weighed
in favor of a sentence above the 60-month sentence previously imposed.
Because Dehijar has not shown the court failed to consider any significant
factors, gave undue weight to any improper factors, or clearly erred in
balancing the sentencing factors, he has failed to rebut the presumption of
reasonableness. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)
(citation omitted).
Similarly, Dehijar has not shown his consecutive 11-month revocation
sentence was substantively unreasonable. The district court had the discretion
to order consecutive sentences. E.g., United States v. Whitelaw, 580 F.3d 256,
260 (5th Cir. 2009); 18 U.S.C. § 3584(a) (“Multiple terms of imprisonment
imposed at the same time run concurrently unless the court orders or the
statute mandates that the terms are to run consecutively.”); see also U.S.S.G.
§ 7B1.3(f) & cmt. n.4. Because the sentences both fell within the advisory
Guidelines-sentencing range and were consistent with the Guidelines’ policy
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regarding consecutive sentences, they are entitled to a presumption of
reasonableness. E.g., U.S.S.G. §§ 7B1.1(a)(2), 7B1.4; United States v. Candia,
454 F.3d 468, 473 (5th Cir. 2006). Dehijar has failed to show the district court
abused its discretion by imposing the consecutive sentences, and has not
rebutted the presumption of reasonableness. E.g., United States v. Lopez-
Velasquez, 526 F.3d 804, 809 (5th Cir. 2008).
AFFIRMED.
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