United States v. Leobardo Sanchez-Torres , 540 F. App'x 353 ( 2013 )

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     Case: 12-51268       Document: 00512383850         Page: 1     Date Filed: 09/24/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
September 24, 2013
No. 12-51268
Summary Calendar                        Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
LEOBARDO SANCHEZ-TORRES,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-1012-1
Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Leobardo Sanchez-Torres appeals the 88-month, within-Guidelines
sentence imposed in connection with his conviction for illegal reentry following
deportation. Sanchez contends his sentence is substantively unreasonable
because it is greater than necessary to accomplish the sentencing objectives of

18 U.S.C. § 3553

(a). In support, he challenges the application of Guideline
§ 2L1.2 (unlawfully entering or remaining in the United States) in calculating
his advisory sentencing range, asserting the Guideline is not empirically based,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51268     Document: 00512383850       Page: 2   Date Filed: 09/24/2013
No. 12-51268
double counts his prior conviction, and fails to account for the nonviolent nature
of his offense, which he asserts is, “at bottom, a trespassory offense”. Sanchez
also contends the district court failed to account for his personal circumstances
and the circumstances of this offense. Specifically, he notes he has suffered from
alcoholism and is in ill health.
Sanchez’ presentence investigation report recommended an offense level
of 21, which included a 16-level increase for previously being deported following
a crime of violence. 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 Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States,

552 U.S. 38

, 48-51
(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); United
States v. Villegas,

404 F.3d 355

, 359 (5th Cir. 2005). Sanchez does not claim
procedural error; instead, he maintains only that the challenged sentence was
substantively unreasonable.
Although Sanchez challenges our court’s application of the presumption
of reasonableness as applied to his within-Guidelines sentence under Guideline
§ 2L1.2, he acknowledges that the issue is foreclosed and raises it only to
preserve it for possible future review. See United States v. Mondragon-Santiago,

564 F.3d 357

, 366-367 (5th Cir. 2009) (rejecting same identical argument).
Sanchez’ “double-counting” contention fails, see United States v. Duarte,

569 F.3d 528

, 529-30 (5th Cir. 2009), as does his contention that Guideline
§ 2L1.2 results in an excessive sentence because it is not empirically based, see
United States v. Rodriguez,

660 F.3d 231

, 232-33 (5th Cir. 2011). Similarly, our
court has rejected the contention that the Guidelines fail to account for the
2
Case: 12-51268    Document: 00512383850     Page: 3   Date Filed: 09/24/2013
No. 12-51268
nonviolent nature of an illegal reentry offense. See United States v. Aguirre-
Villa,

460 F.3d 681

, 683 (5th Cir. 2006).
The district court considered Sanchez’ request for a sentence at the low
end of the advisory sentencing range but ruled that a sentence in the middle of
the range was appropriate, including because of Sanchez’ criminal history.
Sanchez’ contentions regarding his mitigating factors do not rebut the
presumption of reasonableness. See United States v. Cooks,

589 F.3d 173