United States v. Norberto Aquino-Lopez

Case: 12-50440 Document: 00512126742 Page: 1 Date Filed: 01/28/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2013
No. 12-50440
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NORBERTO AQUINO-LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-10-1
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
For the first time on appeal, Defendant-Appellant Norberto Aquino-Lopez
asserts that his 60-month guidelines sentence for illegal reentry is substantively
unreasonable. Aquino-Lopez contends that, in setting his sentence, the district
court failed to recognize that illegal reentry is a non-violent offense, that he
committed the offense for the comprehensible reason of seeking to avoid gang
involvement and violence in El Salvador, and that he plans to move to Spain to
avoid further illegal reentry offenses.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50440 Document: 00512126742 Page: 2 Date Filed: 01/28/2013
No. 12-50440
Although we ordinarily review sentences for reasonableness under an
abuse-of-discretion standard, we review here for plain error because Aquino-
Lopez did not object to his sentence. See United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). Although he disagrees that such an objection is
necessary to preserve error, Aquino-Lopez recognizes that we have ruled
otherwise and raises the issue only to preserve it for further review. See Peltier,
505 F.3d at 391-92. Similarly, he asserts that the presumption of
reasonableness should not apply to his sentence because the illegal reentry
guideline is not supported by empirical data or national experience, but
recognizes that this argument is foreclosed as well. See United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir. 2009).
The district court here implicitly adopted the presentence report, which
described Aquino-Lopez’s personal history and characteristics. The court also
heard Aquino-Lopez’s arguments for a below-guidelines sentence as well as his
allocution. After considering the presentence report, the Guidelines, and
Aquino-Lopez’s personal circumstances, the district court determined that a 60-
month sentence was appropriate. Aquino-Lopez has failed to show that his
presumptively reasonable sentence does not account for a factor that should
have received significant weight, that it gives significant weight to an irrelevant
or improper factor, or that it represents a clear error of judgment in balancing
sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
The judgment of the district court is
AFFIRMED.
2