United States v. Ignacio Gallegos , 671 F. App'x 312 ( 2016 )

Case: 16-50343 Document: 00513794785 Page: 1 Date Filed: 12/13/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50343 FILED
Summary Calendar December 13, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
IGNACIO GALLEGOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-1058-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Ignacio Gallegos appeals the concurrent 120-month and 240-month
sentences he received for receipt and distribution of child pornography and
possession of child pornography. We review preserved arguments that a
sentence is substantively reasonable “under an abuse of discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50343 Document: 00513794785 Page: 2 Date Filed: 12/13/2016
No. 16-50343
First, Gallegos argues the total 240-month sentence is greater than
necessary because U.S.S.G. § 2G2.2 lacks an empirical basis and produced too
high a guidelines range in his case due to its inclusions of enhancements that
are almost inherent to the nature of child pornography offenses. Our opinion
in United States v. Miller, 665 F.3d 114, 120-23 (5th Cir. 2011), forecloses these
arguments. See United States v. Duke, 788 F.3d 392, 397-98 (5th Cir. 2015)
(recognizing that Miller forecloses the issue whether § 2G2.2 produces
unreasonable sentences because it lacks an empirical basis).
Second, Gallegos argues that the sentence is substantively unreasonable
because it treats him like a lost cause and does not reflect the mitigating
factors he urged, such as his having lived a relatively isolated life, his
dedication to his immediate family, and his having his family’s support.
However, the district court considered Gallegos’s mitigating evidence and
determined that a total 240-month term of incarceration was fair and
reasonable after considering the § 3553(a) factors, the circumstances of the
case, and Gallegos’s particular circumstances. Gallegos has not demonstrated
that the district court abused its discretion in weighing or balancing the
§ 3553(a) factors. See Duke, 788 F.3d at 398.
AFFIRMED.
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