United States v. Guillermo Rivera-Jurado , 418 F. App'x 323 ( 2011 )

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     Case: 10-50902 Document: 00511412645 Page: 1 Date Filed: 03/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
March 16, 2011
No. 10-50902
Summary Calendar                         Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GUILLERMO RIVERA-JURADO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-485-1
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Guillermo Rivera-Jurado appeals the 57-month term of imprisonment
imposed for his guilty plea conviction of violating

8 U.S.C. § 1326

(a) and (b)(1)
by attempting to enter the United States without permission, following a prior
removal. He argues that his sentence, which fell within his advisory sentencing
guidelines range, is substantively unreasonable because it was greater than
necessary to achieve the sentencing goals set forth in

18 U.S.C. § 3553

(a). He
contends that a shorter sentence was warranted because U.S.S.G. § 2L1.2, the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50902 Document: 00511412645 Page: 2 Date Filed: 03/16/2011
No. 10-50902
Guideline applicable to violations of § 1326, gave too much weight to his prior
convictions and allowed for the enhancement of his sentence based on a remote
offense. He also contends that his sentence does not account for his cultural
assimilation, the mitigating reasons for his attempted illegal reentry, and his
reduced likelihood of recidivism. Finally, he argues that the district court should
have imposed a variance to avoid an unwarranted sentencing disparity between
defendants sentenced in districts that do not have a fast-track program, and
defendants sentenced in districts that do have fast-track programs.
Citing Kimbrough v. United States,

552 U.S. 85

, 109-10 (2007), Rivera-
Jurado contends that his sentence should not be accorded an appellate
presumption of reasonableness because § 2L1.2 is not empirically based.
However, Rivera-Jurado concedes that his challenge to the presumption of
reasonableness is foreclosed by our 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); see also § 2L1.2, comment. (n.6).
Before imposing Rivera-Jurado’s sentence, the district court judge
considered the advisory sentencing guidelines range, the information in Rivera-
Jurado’s presentence report, and the § 3553(a) factors.           The judge also
considered the arguments presented at sentencing and determined that a
guideline sentence would be appropriate. As Rivera-Jurado acknowledges, the
district court was precluded by this court’s precedent from granting a variance
based on any disparity between sentences imposed in non-fast-track and fast-
track districts. See United States v. Gomez-Herrera,

523 F.3d 554

, 563 (5th Cir.
2008). Rivera-Jurado’s arguments do not establish that the district court abused
its discretion   in   imposing   that sentence, or, consequently, that the
within-guidelines sentence is unreasonable. See Gall v. United States,

552 U.S. 38