United States v. Bernardo Macias-Ortiz ( 2015 )

Case: 15-50449 Document: 00513321918 Page: 1 Date Filed: 12/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-50449 December 28, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BERNARDO MACIAS-ORTIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-2363-1
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Bernardo Macias-Ortiz argues that the 46-month within-guidelines
sentence imposed by the district court following his guilty plea convictions for
attempted illegal reentry and improper use of another’s passport was greater
than necessary to meet the goals of 18 U.S.C. § 3553(a), including adequate
deterrence, that U.S.S.G. § 2L1.2 is not empirically based, that § 2L1.2 double-
counted his criminal history, and that the 16-level enhancement for his prior
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50449
burglary conviction was too severe. He further asserts that his illegal reentry
did not pose a danger to others. Finally, he argues that the advisory guidelines
range does not reflect his cultural assimilation.
Because Macias-Ortiz objected to the reasonableness of the sentence
based on the grounds of cultural assimilation and the lack of an empirical basis
in § 2L1.2 in the district court, he preserved these issues for appellate review.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Although he
did not assert the other grounds he now raises, we will review the sentence for
reasonableness under an abuse-of-discretion standard because his within-
guidelines sentence can be affirmed under either a plain-error or an abuse-of-
discretion standard of review.
Although Macias-Ortiz argues that this court should not apply the
presumption of reasonableness because § 2L1.2 lacks an empirical basis, he
concedes that this argument is foreclosed by this court’s precedent. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 2009). We have
rejected the argument that § 2L1.2 improperly double counts prior convictions.
See id. at 366-67; United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
Further, we have rejected the argument that § 2L1.2 overstates the
seriousness of the offense. See United States v. Juarez-Duarte, 513 F.3d 204,
212 (5th Cir. 2008).
After considering Macias-Ortiz’s arguments and the PSR, the district
court determined that a sentence within the advisory guidelines range was
reasonable based on his previous criminal history. The within-guidelines
sentence is entitled to a presumption of reasonableness. See United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). His argument that the
sentence is greater than necessary to meet the goals of § 3553(a) amounts to a
disagreement with the district court’s balancing of the sentencing factors, and
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No. 15-50449
we will not reweigh those factors. See Gall v. United States, 552 U.S. 38, 51-
52 (2007). His benign motive for returning to this country is insufficient to
rebut the presumption of reasonableness. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008). His cultural assimilation argument is
also insufficient. See id.; United States v. Rodriguez, 660 F.3d 231, 234-35 (5th
Cir. 2011). Because Macias-Ortiz has failed to demonstrate that the district
court did not consider a factor that should have received significant weight,
gave significant weight to a factor it should have discounted, or made a clear
error of judgment when it balanced the relevant factors, he has not rebutted
the presumption of reasonableness. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).
AFFIRMED.
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