United States v. Jose Rivera-Dominguez , 595 F. App'x 452 ( 2015 )

Case: 14-50696 Document: 00512960779 Page: 1 Date Filed: 03/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50696
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 6, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE ISIDRO RIVERA-DOMINGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1298-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Jose Isidro Rivera-Dominguez appeals the
sentence imposed following his guilty plea conviction for illegal reentry
following deportation, in violation of 8 U.S.C. § 1326. He contends that the 64-
month within-guidelines sentence is substantively unreasonable because it is
greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C. §
3553(a). According to Rivera-Dominguez, the guidelines range was too high to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50696
fulfill § 3553(a)’s goals because U.S. Sentencing Guideline § 2L1.2 is not
empirically based and effectively double counts a criminal record. He also
urges that the guidelines range overstates the seriousness of his non-violent
reentry offense and fails to account for his personal history and characteristics,
specifically, the fact that his prior felony convictions were committed more
than 20 years earlier and his benign motive for reentering the United States.
We consider “the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). When, as here, the district court imposes a sentence within a properly
calculated guidelines range, we “give great deference to that sentence and will
infer that the judge has considered all the factors for a fair sentence set forth
in the Guidelines in light of the sentencing considerations set out in § 3553(a).”
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008)
(internal quotation marks and citation omitted). “A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable.” Id.
In reliance on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007),
and for purposes of preserving the issue for possible further review, Rivera-
Dominguez argues that the presumption of reasonableness should not apply
because § 2L1.2 lacks an empirical basis. As he concedes, however, this
argument is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009). We have also rejected claims that double-counting necessarily
renders a sentence unreasonable, see Duarte, 569 F.3d at 529-31, and that the
Guidelines overstate the seriousness of illegal reentry because it is only a
non-violent international-trespass offense, see United States v. Aguirre-Villa,
460 F.3d 681, 683 (5th Cir. 2006).
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Case: 14-50696 Document: 00512960779 Page: 3 Date Filed: 03/06/2015
No. 14-50696
After considering the § 3553(a) factors and Rivera-Dominguez’s request
for a downward variance, the district court concluded that a sentence within
the guidelines range was sufficient, and was not greater than necessary, to
satisfy the goals in § 3553(a). Rivera-Dominguez’s assertions that § 2L1.2’s
lack of an empirical basis, the double-counting, the non-violent nature of his
offense, the remoteness of his prior convictions, and his motive for reentering
justified a lower sentence are insufficient to rebut the presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008). He has therefore failed to show that his within-guidelines sentence
is substantively unreasonable. See Gall, 552 U.S. at 51.
The judgment of the district court is AFFIRMED.
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