United States v. Manuel Carrillo-Moreno , 561 F. App'x 411 ( 2014 )

Case: 13-50264 Document: 00512591250 Page: 1 Date Filed: 04/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50264
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 9, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MANUEL ALBERTO CARRILLO-MORENO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-1283-1
Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM: *
Manuel Alberto Carrillo-Moreno pleaded guilty to illegal reentry after
deportation in violation of 8 U.S.C. § 1326 and was sentenced to 70 months of
imprisonment and three years of supervised release. Carrillo-Moreno
challenges the substantive reasonableness of his sentence, arguing that his
sentence is unreasonable because it is greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a). He contends that the illegal reentry
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50264
Guideline, U.S.S.G. § 2L1.2, is not empirically based and double counts the
defendant’s criminal history. He argues that the presumption of
reasonableness should not apply, but he concedes that his argument is
foreclosed by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), and
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008), and he
raises the argument to preserve it for possible review by the Supreme Court.
He further argues that the guidelines range overstated the seriousness of the
offense, which was essentially a trespass, and failed to account for his benign
motive for reentering the country, that is, his fear for his life in Mexico, his ties
to this country, and his cultural assimilation.
We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007). A within-guidelines sentence is entitled to a
presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). “The presumption is rebutted only upon a showing 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.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
As he so concedes, Carrillo-Moreno’s argument that the presumption of
reasonableness should not apply to his sentence because § 2L1.2 lacks
empirical support has been rejected by this court. See Duarte, 569 F.3d at 529-
31. His argument that his guidelines range was greater than necessary as a
result of “double counting” is unavailing. The Guidelines provide for
consideration of a prior conviction for both criminal history and the § 2L1.2
enhancement. See § 2L1.2, comment. (n.6). We have also rejected the
argument that such double-counting necessarily renders a sentence
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No. 13-50264
unreasonable. See Duarte, 569 F.3d at 529-31. We have previously rejected
the argument that illegal reentry is merely a trespass offense that is treated
too harshly under § 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681,
683 (5th Cir. 2006). Carrillo-Moreno’s argument concerning his benign motive
for reentry fails to rebut the presumption of reasonableness. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
The district court heard the arguments of Carrillo-Moreno’s counsel
concerning his reasons for reentering the United States before imposing a
sentence within the advisory guidelines range. The district court considered
Carrillo-Moreno’s personal history and characteristics and the other statutory
sentencing factors in § 3553(a), in particular Carrillo-Moreno’s previous illegal
reentry conviction and sentence, prior to imposing the sentence. Carrillo-
Moreno’s disagreement with the district court’s weighing of the § 3553(a)
factors is insufficient to rebut the presumption of reasonableness that attaches
to a within-guidelines sentence. See Cooks, 589 F.3d at 186.
Carrillo-Moreno has not demonstrated that the district court abused its
discretion by sentencing him to a within-guidelines sentences of 70 months.
See Gall, 552 U.S. at 51. The judgment of the district court is AFFIRMED.
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