United States v. Fernando Perales-Carrizales , 418 F. App'x 355 ( 2011 )

Case: 10-10321 Document: 00511414404 Page: 1 Date Filed: 03/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 17, 2011
No. 10-10321
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FERNANDO PERALES-CARRIZALES, also known as Jorge Alberto Mata-
Gonzalez,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-155-1
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Fernando Perales-Carrizales (Perales) appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. The district court sentenced Perales to 51 months of
imprisonment, a sentence in the middle of the guidelines sentence range.
Perales argues that his sentence was substantively unreasonable because
the guidelines sentence range overstated his criminal history. He maintains
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10321
that his criminal history was not as serious as that of an average defendant in
his criminal history category who received the 16-level enhancement that he
received. He contends that the record showed that he lived peaceably in the
United States for years before being accidentally discovered by officers looking
for his parents. He states that his guidelines sentence range was increased from
1-7 months of imprisonment to 46-57 months of imprisonment solely because of
his conviction for alien smuggling, a minor offense for which he was only
sentenced to eight months of imprisonment. He asserts that both of his prior
convictions were over 10 years old at the time of sentencing, lessening the
likelihood of recidivism, even though the convictions were properly included in
his criminal history score because they occurred less than 10 years before the
commencement of his current offense in 2005 or 2006. He concludes that his
sentence was unreasonable because a “perfect storm” of the staleness of his prior
convictions, the minor nature of his prior convictions, and the failure of U.S.S.G.
§ 2L1.2 to consider the length of prior sentences makes him less culpable than
a typical defendant with a guidelines sentence range of 46-57 months of
imprisonment.
Perales’s sentence was within the properly calculated guidelines range.
Accordingly, the sentence is presumptively reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Although the 16-level enhancement
applied to Perales pursuant to U.S.S.G. § 2L1.2(b)(1)(A) can lead to unjust
sentences for some defendants, the application of a § 2L1.2(b)(1)(A) enhancement
does not remove the presumption of reasonableness for within-guidelines range
sentences, and the determination whether such an enhancement leads to an
excessive guidelines sentence range is entrusted to the discretion of the district
court. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.), cert. denied,
130 S. Ct. 378 (2009). Accordingly, the large increase in Perales’s guidelines
sentence range based upon his prior conviction for alien smuggling does not
make the sentence unreasonable. See id. Furthermore, as Perales’s prior
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No. 10-10321
convictions occurred within 10 years of the commencement of his present offense,
the sentence was not unreasonable due to the remoteness of the prior
convictions. See United States v. Gonzalez-Valencia, No. 10-30303, 2010 WL
4561396 at *1 (5th Cir. Nov. 12, 2010) (unpublished).
The district court, explicitly considering the 18 U.S.C. § 3553(a) sentencing
factors and the arguments raised by Perales in his motion for a downward
departure or variance, found that a sentence in the middle of the guidelines
sentence range was appropriate. Considering the totality of the circumstances,
as we must, see Gall v. United States, 552 U.S. 38, 51 (2007), Perales has not
shown that the sentence was unreasonable. See Rita v. United States, 551 U.S.
338, 359-60 (2007).
AFFIRMED.
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