United States v. Faustino Dominguez-Amador , 572 F. App'x 272 ( 2014 )

Case: 13-50932 Document: 00512665215 Page: 1 Date Filed: 06/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50932 FILED
Summary Calendar June 16, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
FAUSTINO DOMINGUEZ-AMADOR, also known as Guillermo Rufino
Escamilla, also known as Faustino Martinez, also known as Augustine
Martinez, also known as Faustino Dominguez,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CR-299-1
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
Faustino Dominguez-Amador challenges the 46-month sentence
imposed following his guilty-plea conviction for illegal reentry following
removal, in violation of 8 U.S.C. § 1326. Dominguez contends his within-
Guidelines sentence is substantively unreasonable because it is greater than
necessary to meet the goals of 18 U.S.C. § 3553(a). Along that line, he
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-50932
maintains: because Sentencing Guideline § 2L1.2 (for illegal reentry)
effectively double-counted his prior convictions, the advisory-Guidelines-
sentencing range overstated the seriousness of his non-violent offense, which
he claims is merely an international trespass; and the district court failed to
account for his personal history and characteristics, including his motive for
returning to the United States (working to support his children).
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Dominguez does not claim procedural error, but contends only that his
sentence is substantively unreasonable. On the other hand, “[a] discretionary
sentence imposed within a properly calculated [G]uidelines [sentencing] range
is presumptively reasonable”. United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). Dominguez contends the within-Guidelines sentence
should not be afforded that presumption because Guideline § 2L1.2 lacks an
empirical basis. He concedes our precedent, see, e.g., United States v.
Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009), forecloses this
contention but raises it for possible further review.
At the sentencing hearing, the district court considered Dominguez’
request for a below-Guidelines-range sentence and ultimately concluded a
sentence at the bottom of the applicable, advisory-sentencing range (46–57
months) was appropriate, based upon Dominguez’ criminal history, nine prior
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No. 13-50932
removals from the United States, and use of numerous aliases and birth dates.
Further, our court has rejected the oft-repeated claims that double-counting
necessarily renders a sentence unreasonable and that the Guidelines overstate
the seriousness of illegal reentry. See United States v. Duarte, 569 F.3d 528,
529–30 (5th Cir. 2009).
Dominguez, therefore, has failed to rebut the above-referenced
presumption of reasonableness applied to his 46-month, within-Guidelines
sentence. See, e.g., United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th
Cir. 2008).
AFFIRMED.
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