United States v. Luis Cantu-Sandoval

Case: 15-50939 Document: 00513669413 Page: 1 Date Filed: 09/08/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50939 FILED
c/w No. 15-50940 September 8, 2016
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS FERNANDO CANTU-SANDOVAL,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-1248-1
USDC No. 3:15-CR-771-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
Luis Fernando Cantu-Sandoval appeals the within-Guidelines, ninety-
six-month sentence he received following his guilty plea conviction for illegal
reentry, as well as the consecutive within-Guidelines, twenty-four-month
sentence he received following the revocation of his supervised release. He
asserts that his combined sentence of 120 months is substantively
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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unreasonable as it is greater than necessary to achieve the goals of 18 U.S.C.
§ 3553(a). Cantu-Sandoval argues that his sentence is unreasonable for four
reasons: (1) because the illegal reentry Guideline lacks an empirical basis; (2)
because his sentence effectively double counts his criminal history; (3) because
illegal reentry is a nonviolent offense; and (4) because the district court failed
adequately to consider his personal history and characteristics, including his
lifelong U.S. residency, his history of substance abuse, and his benign reasons
for reentry.
When, as here, the district court imposes a sentence within a properly
calculated Guidelines range, the sentence is presumptively reasonable. United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To rebut this presumption,
Cantu-Sandoval must show “that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” Id.As he acknowledges, Cantu-Sandoval’s argument that the presumption
of reasonableness should not apply to his illegal reentry sentence because
U.S.S.G. § 2L1.2 lacks an empirical basis is foreclosed, and he raises it only to
preserve it for further review. See United States v. Mondragon-Santiago, 564
F.3d 357, 366–67 (5th Cir. 2009). We likewise have previously rejected the
contention that a within-Guidelines sentence is unreasonable because § 2L1.2
effectively double counts prior convictions. See United States v. Duarte, 569
F.3d 528, 529–31 (5th Cir. 2009). Nor have we been persuaded by the claim
that the Sentencing Guidelines do not take into account the nonviolent nature
of an illegal reentry offense. See, e.g., United States v. Juarez-Duarte, 513 F.3d
204, 212 (5th Cir. 2008). Cantu-Sandoval’s personal history and the alleged
nonviolent motive for returning to this country are insufficient to rebut the
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presumption of reasonableness attached to his within-Guidelines illegal
reentry sentence. See, e.g., United States v. Gomez-Herrera, 523 F.3d 554, 565–
66 (5th Cir. 2008). The district court “considered and obviously rejected these
arguments as a basis for a non-Guidelines sentence,” and as Cantu-Sandoval
“was sentenced within a properly calculated [g]uidelines range, his sentence is
entitled to a presumption of reasonableness that we see no reason to disturb.”
Id.Insofar as Cantu-Sandoval challenges the fact that his revocation
sentence was ordered to be served consecutively to his non-revocation sentence,
his challenge is unavailing. Because his twenty-four-month revocation
sentence falls within the applicable advisory Guidelines range and is
consistent with U.S.S.G § 7B1.3(f), p.s. (mandating that “[a]ny term of
imprisonment imposed upon the revocation of . . . supervised release shall be
ordered to be served consecutively to any sentence of imprisonment that the
defendant is serving”), it is entitled to a presumption of reasonableness. See,
e.g., United States v. Lopez-Velasquez, 526 F.3d 804, 808–09 (5th Cir. 2008).
Cantu-Sandoval has not rebutted the presumption of reasonableness afforded
his revocation sentence.
The district court’s judgment is AFFIRMED.
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