United States v. Osvaldo Vasquez-Ochoa ( 2010 )

Case: 09-50679 Document: 00511149627 Page: 1 Date Filed: 06/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2010
No. 09-50679
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OSVALDO VASQUEZ-OCHOA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-865-1
Before JOLLY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Osvaldo Vasquez-Ochoa appeals the 46-month within-guidelines sentence
imposed following his guilty plea to illegal reentry following deportation in
violation of 8 U.S.C. § 1326. Vasquez-Ochoa argues that his sentence is greater
than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and that he
should have been sentenced below the guidelines range. He contends that the
guidelines sentencing range was too severe because U.S.S.G. § 2L1.2 is not
empirically based and resulted in the double counting of his prior aggravated
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50679 Document: 00511149627 Page: 2 Date Filed: 06/22/2010
No. 09-50679
assault conviction. He also argues that the guidelines sentencing range did not
accurately reflect the seriousness of his offense and failed to account for his
motive for reentering and his cultural assimilation.
Vasquez-Ochoa’s empirical data argument is foreclosed by this court’s
precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We have also
previously rejected the argument that the double counting of a defendant’s
criminal history necessarily renders a sentence unreasonable. See Duarte, 569
F.3d at 529-31; see also U.S.S.G. § 2L1.2, comment. (n.6).
Vasquez-Ochoa’s assertions regarding the seriousness of his offense, his
personal history and characteristics, and his motive for reentering the United
States are insufficient to rebut the presumption of reasonableness. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Accordingly, the district court’s
judgment is AFFIRMED.
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