United States v. Osvaldo Nava-Acosta

Case: 13-50363 Document: 00512479327 Page: 1 Date Filed: 12/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50363 December 20, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OSVALDO NAVA-ACOSTA, also known as Osvaldo Cossio-Acosta,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2738-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Osvaldo Nava-Acosta appeals the 41-month
within-guidelines sentence imposed after he was convicted for illegal reentry
following deportation. Nava-Acosta contests the substantive reasonableness
of his sentence for being greater than necessary to accomplish the objectives of
18 U.S.C. § 3553(a). In support of this claim, he challenges the use of U.S.S.G.
§ 2L1.2, the illegal-reentry guideline, in calculating his guidelines range. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50363
asserts that this guideline (1) is not empirically based, (2) double counts his
prior drug-trafficking conviction, and (3) fails to account for the nonviolent
nature of his offense, which he insists is, “at bottom, a trespassory [sic]
offense.” Nava-Acosta also asserts that the district court failed to account for
his personal circumstances and the circumstances of this offense, noting that
he returned to the United States only to find work and thus earn money to
support his family.
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Although Nava-Acosta
objected to the substantive reasonableness of his sentence, he raises his
contention that his sentence is substantively unreasonable because of alleged
flaws in § 2L1.2 for the first time on appeal. To preserve a claim of error, the
defendant must raise it “with the district court in such a manner so that the
district court may correct itself.” United States v. Rodriguez, 15 F.3d 408, 414
(5th Cir. 1994) (internal quotation marks and citations omitted). These
contentions, therefore, are arguably reviewed for plain error. See id. We need
not determine whether plain error review is appropriate in this case, however,
because Nava-Acosta’s claims fail even under the abuse-of-discretion standard.
See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
Although Nava-Acosta challenges the applicability of the presumption of
reasonableness to his within-guidelines sentence under § 2L1.2, he
acknowledges that this challenge is foreclosed and that he raises it only to
preserve it for possible future review. See United States v. Mondragon-
Santiago, 564 F.3d 357, 366-367 (5th Cir. 2009) (rejecting identical argument).
His claim of “double counting” also fails, see United States v. Duarte, 569 F.3d
528, 529-30 (5th Cir. 2009), as does his contention that § 2L1.2 results in an
excessive sentence because it is not empirically based, see United States v.
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No. 13-50363
Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011). Similarly, we have never been
persuaded that the Sentencing Guidelines fail to account for the nonviolent
nature of an illegal reentry offense. See United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006).
The district court considered Nava-Acosta’s efforts to obtain a lesser
sentence but concluded that a sentence at the bottom of the guidelines range
was appropriate because of the nature of Nava-Acosta’s offense and his
criminal history. His contentions regarding his mitigating factors and benign
motive are insufficient to rebut the presumption of reasonableness. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
The sentence imposed by the district court is AFFIRMED.
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