United States v. Mascorro-Chavarria , 321 F. App'x 385 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 13, 2009
No. 08-50898
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RENE ALBERTO MASCORRO-CHAVARRIA, also known as Rene
Mascorro-Chavarria, also known as Rene Chavaria-Mascorro
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-727-ALL
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Rene Alberto Mascorro-Chavarria pleaded guilty to the charge of illegal
reentry. Because Mascorro-Chavarria had a prior conviction for aggravated
robbery, his offense level was adjusted upward by 16 levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The district court sentenced Mascorro-Chavarria to a 70-
month term of imprisonment and a three-year term of supervised release.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-50898
Mascorro-Chavarria argues that his sentence was greater than necessary
to accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2). Mascorro-
Chavarria concedes that this court ordinarily applies a presumption of
reasonableness to within-guideline sentences. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008);
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129
S. Ct. 624 (2008). Citing Kimbrough v. United States, 128 S. Ct. 558, 574-75
(2007), he contends that the presumption should not apply in this case because
§ 2L1.2 is not empirically supported.
The question presented in Kimbrough was whether “a sentence . . . outside
the guidelines range is per se unreasonable when it is based on a disagreement
with the sentencing disparity for crack and powder cocaine offenses.” 128 S. Ct.
at 564. Speaking specifically to the crack cocaine Guidelines, the Court simply
ruled that “it would not be an abuse of discretion for a district court to conclude
when sentencing a particular defendant that the crack/powder disparity yields
a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a
mine-run case.” Id. at 575. In Kimbrough, the Court said nothing of the
applicability of the presumption of reasonableness. Moreover, the appellate
presumption’s continued applicability to § 2L1.2 sentences is supported by this
court’s decision in Campos-Maldonado, 531 F.3d at 338-39. The appellate
presumption is therefore applicable in this case.
Mascorro-Chavarria’s within-guidelines sentence is entitled to a rebuttable
presumption of reasonableness. See Campos-Maldonado, 531 F.3d at 338;
Gomez-Herrera, 523 F.3d at 565-66. As Mascorro-Chavarria concedes, his
argument that he deserved a lesser sentence based upon the disparity in fast
track early disposition programs is foreclosed by Gomez-Herrera, 523 F.3d at 563
n.4. Because Mascorro-Chavarria has not shown that his sentence is
unreasonable, the judgment of the district court is AFFIRMED.
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