United States v. Francisco Estrada-Garcia

Case: 14-50931 Document: 00512991616 Page: 1 Date Filed: 04/02/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50931
c/w No. 14-50932
United States Court of Appeals
Fifth Circuit
Summary Calendar FILED
April 2, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO JAVIER ESTRADA-GARCIA,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1598-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Francisco Javier Estrada-Garcia appeals the 26-
month within-guidelines sentence imposed following his guilty plea conviction
for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14- 50931
c/w No. 14-50932
also appeals the consecutive 18-month sentence imposed following the
revocation of a prior term of supervised release.
Estrada-Garcia contends that U.S.S.G. § 2L1.2 is not empirically based
and effectively double counts a defendant’s criminal record. The 26-month
sentence imposed for the illegal reentry offense was within the guidelines
range and is therefore entitled to a presumption of reasonableness. See United
States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008). As Estrada-
Garcia concedes, his contention that the presumption of reasonableness to his
illegal reentry sentence should not apply because the illegal reentry Guideline
lacks an empirical basis is foreclosed. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir. 2009). We have consistently rejected “double counting”
arguments and arguments that § 2L1.2 results in excessive sentences because
it is not empirically based. See Duarte, 569 F.3d at 529-31. Estrada-Garcia
also contends that the range overstated the seriousness of his nonviolent
reentry offense and that the combined sentence failed to account for his
personal history and characteristics. We have rejected the “international
trespass” argument that Estrada-Garcia asserts. See United States v. Juarez-
Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
To the extent that Estrada-Garcia separately challenges the
reasonableness of his revocation sentence, he has not shown that the within-
guidelines 18-month revocation sentence was plainly unreasonable. See
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
Finally, Estrada-Garcia contends that the combined 44-month sentence
is substantively unreasonable because it was greater than necessary to satisfy
the sentencing goals in 18 U.S.C. § 3553(a). The district court had the
discretion to order that the sentences be served consecutively. See United
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No. 14- 50931
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States v. Whitelaw, 580 F.3d 256, 260-61 (5th Cir. 2009); see also 18 U.S.C.
§ 3584(a); U.S.S.G. § 7B1.3(f) & comment. (n.4), p.s. The consecutive sentence
is entitled to a presumption of reasonableness. See United States v. Candia,
454 F.3d 468, 472-73 (5th Cir. 2006). The district court considered the
§ 3553(a) factors, including Estrada-Garcia’s personal history and motives. He
has not shown that the district court failed to give proper weight to his
arguments or any particular § 3553(a) factor when imposing the sentences. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Estrada-Garcia’s
motives for reentry are not sufficient to rebut the presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008).
AFFIRMED.
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