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United States v. Juan Gandara-Gonzalez ( 2010 )


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  •      Case: 09-50590     Document: 00511103951          Page: 1    Date Filed: 05/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
May 7, 2010
No. 09-50590
Summary Calendar                         Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN ANTONIO GANDARA-GONZALEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-439-1
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
The district court sentenced Juan Antonio Gandara-Gonzalez to serve 46
months in prison and a three-year term of supervised release following his
conviction of one count of illegal reentry into the United States. In this appeal,
Gandara-Gonzalez challenges his sentence, which was within the applicable
guidelines range, as being too severe. He argues that the pertinent Guideline,
U.S.S.G. § 2L1.2, is flawed because it is not empirically based and because it
ignores the remote nature of his prior offense as well as his age. In Gandara-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50590   Document: 00511103951 Page: 2        Date Filed: 05/07/2010
No. 09-50590
Gonzalez’s opinion, his sentence is unduly harsh because the district court did
not properly weigh the sentencing factors given in
    18 U.S.C. § 3553
    (a).
Following United States v. Booker,
    543 U.S. 220
     (2005), we review
sentences for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares,
    402 F.3d 511
    , 519-20 (5th Cir. 2005). Pursuant to Gall
v. United States,
    552 U.S. 38
     (2007), we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez,
    564 F.3d 750
    , 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error.”
    Id. at 752-53
    . If there is no such
error, we then review the substantive reasonableness of the sentence imposed
for an abuse of discretion.
    Id. at 751-53
    .
Gandara-Gonzalez’s arguments concerning the district court’s balancing
of the § 3553(a) factors amount to a disagreement with the district court’s
weighing of these factors and the appropriateness of his within-guidelines
sentence. This disagreement does not suffice to show error in connection with
his sentence. See United States v. Cooks,
    589 F.3d 173
    , 186 (5th Cir. 2009),
petition for cert. filed (Feb. 19, 2010) (No. 09-9216); United States v. Gomez-
Herrera,
    523 F.3d 554
    , 565-66 (5th Cir.), cert. denied,
    129 S. Ct. 624
     (2008). His
claim that his sentence is improper due to the flawed nature of § 2L1.2 is
likewise unavailing. See United States v. Mondragon-Santiago,
    564 F.3d 357
    ,
365-67 (5th Cir.), cert. denied,
    130 S. Ct. 192
     (2009). Gandara-Gonzalez has not
shown that his sentence was either procedurally or substantively unreasonable,
nor has he rebutted the presumption of reasonableness that attaches to his
within-guidelines sentence. See United States v. Armstrong,
    550 F.3d 382
    , 405
(5th Cir. 2008), cert. denied,
    130 S. Ct. 54
     (2009); United States v. Alonzo,
    435 F.3d 551
    , 554 (5th Cir. 2006).
The judgment of the district court is AFFIRMED.
2