United States v. Jose Juarez-Olvera , 490 F. App'x 665 ( 2012 )

Case: 12-50099 Document: 00512033698 Page: 1 Date Filed: 10/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2012
No. 12-50099
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE DANIEL JUAREZ-OLVERA, also known as Jose Juan Juarez-Olvera,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-744-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Daniel Juarez-Olvera appeals the 21-month
within-guidelines sentence imposed in connection with his conviction for illegal
reentry following deportation. Juarez-Olvera challenges only the substantive
reasonableness of his sentence, arguing that it is greater than necessary to
accomplish the sentencing objectives of 18 U.S.C. § 3553(a). He challenges the
application of U.S.S.G. § 2L1.2 in calculating his guidelines range because he
asserts that the guideline is not empirically based and overstates his criminal
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50099
history. Further, he asserts that the district court failed to account for his
personal circumstances. Specifically, he notes that he returned to the United
States only to make money to support his ill daughters.
Although Juarez-Olvera argued for a downward variance, he failed to
object to the reasonableness of the sentence imposed. Juarez-Olvera concedes
that he failed to object to his sentence after it was imposed and that our review
is limited to plain error. Nevertheless, he seeks to preserve for further review
his contention that a reasonableness objection on the imposition of sentence is
not required for abuse-of-discretion review. As Juarez-Olvera did not object to
the reasonableness of his sentence after it was imposed, review is arguably for
plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007);
but see United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996). We need not
determine whether plain error review is appropriate because Juarez-Olvera’s
arguments fail even under the abuse-of-discretion standard of review. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Since Juarez-Olvera’s sentence was within his advisory guidelines range, his
sentence is presumptively reasonable. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009). Juarez-Olvera challenges the presumption of
reasonableness applied to his sentence but acknowledges the issue is foreclosed
and raises it to preserve the issue for further review. See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-367 (5th Cir. 2009).
We have rejected Juarez-Olvera’s argument that the seriousness of his
offense is overstated because U.S.S.G. § 2L1.2 is not empirically based. See
United States v. Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011); United States
v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009). The district court listened to
Juarez-Olvera’s arguments for a lesser sentence but found that a sentence
within the guidelines range was appropriate. His contentions regarding his
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No. 12-50099
mitigating factors and benign motive for reentry do not rebut the presumption
of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008); United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.
2008). Thus, Juarez-Olvera has not shown sufficient reason for us to disturb the
presumption of reasonableness applicable to his sentence. See Cooks, 589 F.3d
at 186.
Accordingly, the judgment of the district court is AFFIRMED.
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