United States v. Nicolas Pop-Aguilar , 582 F. App'x 494 ( 2014 )

Case: 14-50232 Document: 00512785028 Page: 1 Date Filed: 09/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-50232 September 29, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NICOLAS POP-AGUILAR,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-740-1
Before DAVIS, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Nicolas Pop-Aguilar pleaded guilty to illegal reentry after deportation
and was sentenced to 30 months of imprisonment and two years of supervised
release. In determining the sentence, the district court applied the 12-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because of Pop-Aguilar’s 1994
Iowa conviction for lascivious acts with a child. Pop-Aguilar contends that his
sentence is unreasonable because it is greater than necessary to meet 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50232 Document: 00512785028 Page: 2 Date Filed: 09/29/2014
No. 14-50232
sentencing goals in U.S.S.G. § 3553(a). He argues that the sentence failed to
take into account the circumstances of his case, that is, that his Iowa conviction
occurred almost 20 years ago, that he had a benign motive in reentering the
United States, and that he is the sole provider for his family.
Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for procedural error and substantive reasonableness under an abuse
of discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th
Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). Because
Pop-Aguilar did not object to the procedural and substantive reasonableness of
the sentence, our review is for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). To show plain error, Pop-Aguilar must show
a forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.A presumption of substantive reasonableness applies to within-
guidelines sentences. See Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). “The presumption
is rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).
Pop-Aguilar’s arguments do not show a clear error of judgment on the
district court’s part in balancing the § 3553(a) factors; instead, they constitute
a mere disagreement with the weighing of those factors. See Cooks, 589 F.3d
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No. 14-50232
at 186. On this record, Pop-Aguilar cannot rebut the presumption of
substantive reasonableness. See id. Nor can he show that the district court
committed reversible plain error in applying the statutory sentencing factors.
See Puckett, 556 U.S. at 135. The judgment is AFFIRMED.
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