United States v. Jose Rocha-Gutierrez

Case: 14-50677 Document: 00512978593 Page: 1 Date Filed: 03/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-50677
Fifth Circuit
FILED
c/w No. 14-50680 March 23, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE HOMERO ROCHA-GUTIERREZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1431
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Jose Homero Rocha-Gutierrez appeals the within-guidelines sentence
imposed followed his guilty plea conviction for illegal reentry into the United
States and the revocation of his supervised release term for a prior illegal
reentry offense. He argues that the sentence is greater than necessary to meet
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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the sentencing goals of 18 U.S.C. § 3553(a) and, therefore, substantively
unreasonable. Because Rocha-Gutierrez did not object to the reasonableness
of the sentence in the district court, review is limited to plain error. See United
States v. Powell, 732 F.3d 361, 381 (5th Cir. 2013).
None of Rocha-Gutierrez’s arguments are sufficient to rebut the
presumption that his within-guidelines sentence is reasonable. See United
States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013). We have rejected Rocha-
Gutierrez’s argument that U.S.S.G. § 2L1.2’s double-counting of a prior
conviction necessarily renders a sentence unreasonable. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). We have also rejected
substantive reasonableness challenges based on the alleged nonviolent nature
of an illegal reentry offense. United States v. Juarez-Duarte, 513 F.3d 204, 212
(5th Cir. 2008). In addition, we have rejected the argument that a consecutive
within-guidelines revocation sentence causes the combined sentence to be
substantively unreasonable. United States v. Lopez-Velasquez, 526 F.3d 804,
808-09 (5th Cir. 2008). Further, Rocha-Gutierrez concedes that his argument
that the appellate presumption of reasonableness should not be applied to his
sentence is foreclosed by circuit precedent. See Duarte, 569 F.3d at 530-31;
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
After considering the Presentence Report and defense counsel’s
arguments concerning Rocha-Gutierrez’s mental health and substance abuse
problems, his head injury, his remote criminal history, and his cultural
assimilation, the district court determined that a within-guidelines sentence
was appropriate. Although a defendant’s cultural assimilation can be a
mitigating factor at sentencing, the district court was not required to give this
factor dispositive weight. See United States v. Rodriguez, 660 F.3d 231, 234-
35 (5th Cir. 2011). Rocha-Gutierrez’s disagreement with the propriety of the
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sentence imposed does not suffice to rebut the presumption of reasonableness
that attaches to a within-guidelines sentence. See id.; see also United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Although he may
disagree with the weight that the district court gave to the sentencing factors,
we will not reweigh them. See, e.g., United States v. McElwee, 646 F.3d 328,
344-45 (5th Cir. 2011).
Rocha-Gutierrez has failed to show that the district court did not
consider a factor that should have received significant weight, gave significant
weight to a factor it should have discounted, or made a clear error of judgment
when it balanced the relevant factors. See Jenkins, 712 F.3d at 214. Therefore,
he has not rebutted the presumption that his within-guidelines sentence is
reasonable, much less has he shown that the district court committed plain
error. See id.
AFFIRMED.
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