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United States v. Acxel Ambrocio-Castaneda , 583 F. App'x 431 ( 2014 )


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  •      Case: 14-50059      Document: 00512824805         Page: 1    Date Filed: 11/04/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50059                           United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
November 4, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
ACXEL JEOBANNI AMBROCIO-CASTANEDA,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-866-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Acxel Ambrocio-Castaneda appeals the sentence imposed for his guilty-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50059   Document: 00512824805      Page: 2   Date Filed: 11/04/2014
No. 14-50059
plea conviction of illegal reentry following deportation in violation of
    8 U.S.C. § 1326
    . He contends that the 46-month within-guidelines sentence is substan-
tively unreasonable because it is greater than necessary to satisfy the sentenc-
ing goals set forth in
    18 U.S.C. § 3553
    (a). According to Ambrocio-Castaneda,
the guideline range was too high to fulfill § 3553(a)’s goals because U.S.
Sentencing Guidelines § 2L1.2 is not empirically based and effectively double-
counts a criminal record. He also urges that the range overstated the serious-
ness of his non-violent reentry offense and failed to account for his personal
history and characteristics, specifically, his cultural assimilation, his difficult
childhood, his age at the time of his sole conviction, his new understanding of
the consequences he faces for illegal reentry, and his motive for returning to
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 the district court imposes a sentence within a properly calcu-
lated guidelines range and gives proper weight to the Guidelines and the . . .
§ 3553(a) factors, we will 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) (inter-
nal quotation marks and citation omitted). “A discretionary sentence imposed
within a properly calculated guidelines range is presumptively reasonable.”
    Id.
    Ambrocio-Castaneda contends that the presumption of reasonableness
should not apply to sentences calculated under § 2L1.2 because the guideline
is not empirically based. He acknowledges that his theory is foreclosed by
circuit precedent but seeks to preserve it for further review. As he concedes,
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Case: 14-50059     Document: 00512824805      Page: 3   Date Filed: 11/04/2014
No. 14-50059
we have consistently rejected his “empirical data” argument. 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 & n.7 (5th Cir. 2009). We have also rejected
arguments that double-counting necessarily renders a sentence unreasonable,
see Duarte,
    569 F.3d at 
    529−31, and that the guidelines overstate the serious-
ness 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).
The district court considered the § 3553(a) factors and Ambrocio-
Castaneda’s request for a downward variance and concluded that a sentence
at the bottom of the guideline range was sufficient, but not greater than neces-
sary, to satisfy the goals in § 3553(a). Ambrocio-Castaneda’s assertions that
§ 2L1.2’s lack of an empirical basis, the double-counting, the non-violent nature
of his offense, his new understanding of the consequences he faces for illegal
reentry, his cultural assimilation, his difficult childhood, his age at the time of
his prior conviction, 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); United States v. Rod-
riguez,
    523 F.3d 519
    , 526 (5th Cir. 2008). Therefore, Ambrocio-Castaneda has
failed to show that the within-guidelines sentence is substantively unreasona-
ble. See Campos-Maldonado,
    531 F.3d at 339
    .
The judgment of sentence is AFFIRMED.
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