United States v. Aguirre , 277 F. App'x 521 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 9, 2008
No. 07-51088
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LUIS FERNANDO AGUIRRE
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-551-1
Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Luis Fernando Aguirre appeals his 96-month sentence following his guilty
plea conviction for bank robbery in violation of 18 U.S.C. § 2113(a). Aguirre
argues that his sentence, which is within a properly-calculated advisory
guideline range, is unreasonable because the district court erred in applying a
three-level enhancement required by U.S.S.G. § 2B3.1(b)(2)(E). Aguirre asserts
that the application of § 2B3.1(b)(2)(E) overstates the seriousness of the offense
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-51088
and represents an “unsound judgment” that results in an “unwarrantedly harsh
sentence for the unarmed offender.”
After entering the bank and approaching the teller window, Aguirre
handed the teller a note stating that he had a gun. During the course of the
bank robbery, Aguirre kept one hand under his shirt and gestured to the teller
as if he had a gun. He verbally told the teller that he had a gun and would use
it. In response to these threats, the teller removed cash from her drawer and
gave it to Aguirre.
There is no evidence that the district court committed a significant
procedural error at sentencing. See Gall v. United States, 128 S. Ct. 586, 597
(2007). Moreover, where the district court imposes a sentence within a properly
calculated guideline range, the sentence is entitled to a rebuttable presumption
of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see also Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Aguirre has
failed to demonstrate that his sentence is unreasonable. See Gall, 128 S. Ct. at
597; see also United States v. Souther, 221 F.3d 626, 629 (4th Cir. 2000) (“We
agree with the Third and Eleventh Circuits that a concealed hand may serve as
an object that appears to be a dangerous weapon.”). Accordingly, the judgment
of the district court is AFFIRMED.
2