United States v. Rolando Perez-Requena

Case: 13-50228 Document: 00512490059 Page: 1 Date Filed: 01/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50228 January 6, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ROLANDO ISAIS PEREZ-REQUENA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-841-1
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
Rolando Isais Perez-Requena pleaded guilty to illegal reentry into the
United States. Perez challenges his within-Guidelines sentence of, inter alia,
51-months’ imprisonment. He contends his sentence is substantively
unreasonable because it was greater than necessary to meet the sentencing
goals under 18 U.S.C. § 3553(a).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50228 Document: 00512490059 Page: 2 Date Filed: 01/06/2014
No. 13-50228
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 Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 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). Perez does not claim procedural
error. Instead, he maintains only that the challenged sentence was
substantively unreasonable.
“A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.” United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (citations omitted). Perez
contends, however, the presumption of reasonableness does not apply to his
within-Guidelines sentence, claiming the illegal-reentry Guideline, § 2L1.2, is
not supported by empirical data and double counts criminal history. Perez
concedes this contention is foreclosed by our precedent. See, e.g., United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). He raises the issue only to
preserve it for possible further review.
Perez also contends the aggravated-assault conviction underlying his
crime-of-violence enhancement occurred 12 years ago and he has since changed
his life for the better. He further claims his sentence overstates the
seriousness of his instant illegal-reentry offense and fails to account for the
fact his motivation in returning to the United States was to earn money to
support his young children.
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Case: 13-50228 Document: 00512490059 Page: 3 Date Filed: 01/06/2014
No. 13-50228
Perez’ contention about the remoteness of his aggravated-assault
conviction is not persuasive because “the staleness of a prior conviction used in
the proper calculation of a [G]uidelines-range sentence does not render a
sentence substantively unreasonable”. United States v. Rodriguez, 660 F.3d
231, 234 (5th Cir. 2011). The district court heard Perez’ contentions for a lesser
sentence but found the 51-month sentence appropriate. Perez’ claims are
insufficient to rebut the presumption of reasonableness. See, e.g., United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
AFFIRMED.
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