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United States v. Jose Gutierrez-Jacquez ( 2011 )


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  •       IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2011
No. 10-50630
Summary Calendar                    Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE ALFREDO GUTIERREZ-JACQUEZ, also known as Alfredo Gutierrez-
Jacquez, also known as Alfredo Jose Gutierrez,
Defendant - Appellant
____________________________________________________
Consolidated with No. 10-50631
____________________________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE ALFREDO GUTIERREZ-JACQUEZ,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-443-1
USDC No. 2:09-CR-1587-1
No. 10-50630
c/w No. 10-50631
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Alfredo Gutierrez-Jacquez was sentenced, inter alia, to 27 months’
imprisonment, following his guilty-plea conviction for illegal reentry into the
United States.         Gutierrez contends his within-Guidelines sentence is
substantively unreasonable because: it is greater than necessary to achieve the
sentencing goals of
    18 U.S.C. § 3553
    (a); and the advisory Sentencing Guidelines
fail to properly account for his reasons for returning to the United States, his
personal history, and his work ethic.
Gutierrez also contends his within-Guidelines sentence should not be
afforded the usual presumption of reasonableness because Sentencing Guideline
§ 2L1.2 is not empirically based and improperly double counts his prior offense.
These “lack-of-empirical-data” and “double-counting” contentions are foreclosed
by our court’s precedent and are, therefore, unavailing. See United States v.
Duarte,
    569 F.3d 528
    , 529-31 (5th Cir.), cert. denied,
    130 S. Ct. 378
     (2009). His
challenge to the presumption of reasonableness of his within-Guidelines
sentence is likewise identical to one our court has previously held lacking in
merit. See United States v. Mondragon-Santiago,
    564 F.3d 357
    , 366-67 (5th
Cir.), cert. denied,
    130 S. Ct. 192
     (2009).
Gutierrez does not assert procedural error regarding the calculation of his
advisory Guideline sentencing range. Regarding his challenge to the substantive
reasonableness of his sentence, Gutierrez concedes he did not object in district
court to its reasonableness; therefore, his challenge is reviewed only for plain
error. United States v. Peltier,
    505 F.3d 389
    , 391-92 (5th Cir. 2007). To show
*
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.
2
No. 10-50630
c/w No. 10-50631
reversible plain error, Gutierrez must show a clear or obvious error that affects
his substantial rights. Puckett v. United States,
    129 S. Ct. 1423
    , 1429 (2009).
Gutierrez’   substantive-reasonableness      contentions    constitute   a
disagreement with the district court’s weighing of the § 3553(a) sentencing
factors and the appropriateness of his sentence. Because these contentions do
not suffice to show error, much less reversible plain error, Gutierrez has failed
to rebut the presumption of reasonableness attached to his within-Guidelines
sentence. See Gall v. United States,
    552 U.S. 38
    , 50-51 (2007); United States v.
Gomez-Herrera,
    523 F.3d 554
    , 565-66 (5th Cir. 2008).
AFFIRMED.
3