United States v. Silvestre Lara-Cervantes ( 2019 )

Case: 19-10048 Document: 00515245153 Page: 1 Date Filed: 12/20/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-10048
FILED
December 20, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
SILVESTRE LARA-CERVANTES,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-198-1
Before BENAVIDES, DENNIS, and OLDHAM, Circuit Judges.
PER CURIAM: *
Silvestre Lara-Cervantes pleaded guilty to illegal reentry after
deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). The district court
sentenced him to 46 months of imprisonment followed by a one-year term of
supervised release. Lara-Cervantes filed a timely notice of appeal.
Lara-Cervantes argues that his bottom-of-the-guidelines sentence is
substantively unreasonable because the district court failed to give enough
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10048 Document: 00515245153 Page: 2 Date Filed: 12/20/2019
No. 19-10048
weight to the fact that he had spent eight months in state custody for driving
while intoxicated (DWI) before being prosecuted for illegal reentry. This court
considers the substantive reasonableness of the sentence imposed under a
deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38,
51 (2007).
The record reflects that the district court considered Lara-Cervantes’s
arguments for a downward departure to account for the time he spent in state
custody for his most recent DWI offense. The court concluded, however, that
given Lara-Cervantes’s criminal history, which included four DWI offenses,
and the danger he posed to the public, such a departure was not warranted.
As provided by the commentary to U.S.S.G. § 2L1.2, the seriousness of Lara-
Cervantes’s criminal history was an appropriate factor for the court to
consider. § 2L1.2, comment. (n.6) (2016).
Lara-Cervantes’s arguments are nothing more than a disagreement with
the district court’s weighing of the § 3553(a) factors, which is insufficient to
show an abuse of discretion. See United States v. Ruiz, 621 F.3d 390, 398 (5th
Cir. 2010). Because Lara-Cervantes has not rebutted the presumption of
reasonableness applicable to his within-guidelines sentence, the judgment of
the district court is AFFIRMED. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
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