United States v. Tolentino Flores

Case: 13-50190 Document: 00512472758 Page: 1 Date Filed: 12/17/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50190 December 17, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
TOLENTINO CASTILLO FLORES,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2252-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Tolentino Castillo Flores (Castillo) was sentenced to a 57-month term of
imprisonment following his guilty plea to illegal reentry of a deported alien.
See 8 U.S.C. § 1326. Castillo challenges the substantive reasonableness of the
sentence. See Gall v. United States, 552 U.S. 38, 49-51 (2007). Review is
limited to plain error because Castillo failed to challenge the reasonableness of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50190 Document: 00512472758 Page: 2 Date Filed: 12/17/2013
No. 13-50190
his sentence in the district court. See Puckett v. United States, 556 U.S. 129,
134-35 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
We have consistently rejected Castillo’s “double counting” argument and
his argument that U.S. Sentencing Guidelines Manual § 2L1.2 results in
excessive sentences because it is not empirically based. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). We also have rejected the
“international trespass” argument that Castillo asserts. See United States v.
Aguirre–Villa, 460 F.3d 681, 683 (5th Cir. 2006).
In reliance on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007),
and for purposes of preserving the issue for possible further review, Castillo
argues that the presumption of reasonableness should not apply because the
illegal reentry guideline lacks an empirical basis. As Castillo concedes, his
argument is foreclosed. See Duarte, 569 F.3d at 529-31; United States v.
Mondragon–Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). He has not shown
that his sentence does not account for a sentencing factor that should receive
significant weight, gives significant weight to an irrelevant or improper factor,
or represents a clear error of judgment in balancing sentencing factors. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Mere disagreement
with the propriety of his sentence or with the weight given to 18 U.S.C.
§ 3553(a) factors does not suffice to rebut the presumption of reasonableness
that attaches to a within-guidelines sentence. See United States v. Ruiz, 621
F.3d 390, 398 (5th Cir. 2010). Because Castillo has not shown error, plain or
otherwise, the judgment of the district court is AFFIRMED.
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