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United States v. Javier Moreno-Moreno , 611 F. App'x 243 ( 2015 )


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  •      Case: 14-20424      Document: 00513152048         Page: 1    Date Filed: 08/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20424
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 12, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JAVIER MORENO-MORENO, also known as Javier Perez Moreno, also
known as Javier Moreno, also known as Bertin Lopez, also known as Daniel
Lopez, also known as David Hernandez, also known as Javier Moreno Moreno,
also known as Daniel Lopez Garcia,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-724-1
Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM: *
Javier Moreno-Moreno appeals his 57-month within-guidelines sentence
for illegal reentry into the United States. Moreno contends that his sentence
is substantively unreasonable because the district court failed to sufficiently
account for mitigating factors, including his cultural assimilation; his non-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20424     Document: 00513152048     Page: 2   Date Filed: 08/12/2015
No. 14-20424
culpable role in a 1996 aggravated assault offense, upon which the district
court applied a 16-level crime-of-violence increase to his base offense level; and
the 34 days he spent in Immigration and Customs Enforcement (ICE) custody.
To the extent Moreno challenges the denial of his request for a departure
based on cultural assimilation, this court lacks jurisdiction to review a district
court’s record-based denial of a departure unless “the district court’s refusal is
based on the mistaken belief that the court lacked discretion to depart.” United
States v. Rodriguez-Montelongo,
    263 F.3d 429
    , 431 (5th Cir. 2001) (internal
quotation marks and citation omitted). The record supports the conclusion
that the district court understood it had discretion to depart but determined
that departure was not warranted by the facts of the case. Therefore, this court
lacks jurisdiction to address the denial of a downward departure.             See
Rodriguez-Montelongo,
    263 F.3d at 431
    .
Appellate review of a district court’s sentencing decision is limited to
determining whether a sentence is reasonable. Gall v. United States,
    552 U.S. 38
    , 46 (2007). “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”       United States v. Campos-
Maldonado,
    531 F.3d 337
    , 338 (5th Cir. 2008); see United States v. Cooks,
    589 F.3d 173
    , 186 (5th Cir. 2009).         Since Moreno failed to object to the
reasonableness of his sentence, the district court’s sentencing determination is
reviewed for plain error. See United States v. Peltier,
    505 F.3d 389
    , 391-92 (5th
Cir. 2007).
Moreno’s arguments that the district court failed to account for his
cultural assimilation and the purported severity of the 16-level enhancement
are not supported by the record. The record reflects that in imposing the
sentence, the district court considered the presentence report and the
arguments of the parties—including Moreno’s request for a downward
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Case: 14-20424    Document: 00513152048     Page: 3   Date Filed: 08/12/2015
No. 14-20424
departure based on cultural assimilation—and further considered Moreno’s
contention that his prior aggravated assault conviction “really skew[ed]” the
advisory guidelines range. Although Moreno contends that the district court
failed to consider his request for a variance for time spent in ICE custody, the
record reflects that the district court reviewed Moreno’s sentencing
memorandum, which contained his argument for the requested variance, an
argument he did not reassert at the sentencing hearing. Moreno fails to show
that the district court committed clear or obvious error. See Puckett v. United
States,
    556 U.S. 129
    , 135 (2009). His contention that the district court should
have sentenced him below the guidelines range reflects his mere disagreement
with the propriety of his sentence, which is insufficient to rebut the
presumption of reasonableness. See United States v. Ruiz,
    621 F.3d 390
    , 398
(5th Cir. 2010); Cooks,
    589 F.3d at 186
    .
Accordingly, the judgment of the district court is AFFIRMED.
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