United States v. Dolores Ruiz-Gallegos

Case: 13-50036 Document: 00512424336 Page: 1 Date Filed: 10/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 30, 2013
No. 13-50036
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DOLORES RUIZ-GALLEGOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2235-1
Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Dolores Ruiz-Gallegos appeals the 60-month within-guidelines sentence
imposed by the district court following his guilty plea conviction for unlawful
reentry into the United States. He argues that the 60-month sentence was
substantively unreasonable and greater than necessary to meet the goals of 18
U.S.C. § 3553(a). He asserts that the presumption of reasonableness should not
apply because the applicable guidelines provision for illegal reentry offenses,
U.S.S.G. § 2L1.2, is not empirically based, double counts his criminal history,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-50036
and overstates the seriousness of the offense which is essentially a trespass. He
also contends that the district court failed to account adequately for his horrific
personal history and the circumstances of the offense.
Ordinarily, we review the substantive reasonableness of a sentence for
reasonableness under a deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). Although Ruiz-Gallegos raised arguments in the
district court for a lesser sentence based on his personal history and
circumstances, he did not object to the substantive reasonableness of the
sentence in the district court, and he did not raise all the specific arguments that
he raises in this court. The failure to object to the substantive reasonableness
of the sentence generally results in plain error review. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). However, even under the ordinary
standard, Ruiz-Gallegos’s arguments fail.
The 60-month within-guidelines sentence imposed by the district court
was presumptively reasonable. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). Ruiz-Gallegos concedes that his arguments that the
presumption is inapplicable and that § 2L1.2 results in the double-counting of
a conviction are foreclosed. See United States v. Duarte, 569 F.3d 528, 529-30
(5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009). This court has consistently rejected arguments that § 2L1.2 results
in an excessive sentence because it is not empirically based and because it
double counts prior convictions. See Duarte, 569 F.3d at 529-30; Mondragon-
Santiago, 564 F.3d at 366-67. It has also consistently rejected the argument
that illegal reentry is merely a trespass offense. See United States v. Juarez-
Duarte, 513 F.3d 204, 212 (5th Cir. 2008); United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006). The record shows that the district court
considered and rejected Ruiz-Gallegos’s arguments for a lesser sentence based
on his personal history and the circumstances of the offense. The district court
stated that Ruiz-Gallegos had been coming to the United States for about 32 to
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No. 13-50036
33 years and that the court thought that he was going to try to return to the
United States. The district court was in a superior position to find facts and
judge their import under § 3553(a). See United States v. Campos-Maldonado,
531 F.3d 337, 339 (5th Cir. 2008). Ruiz-Gallegos’s mere disagreement with the
district court’s weighing of the § 3553(a) factors is not enough to rebut the
presumption of reasonableness. See United States v. Ruiz, 621 F.3d 390, 398
(5th Cir. 2010).
AFFIRMED.
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