United States v. Omar Garcia-Rodriguez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 1, 2013
No. 12-50324
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ISIDRO AYALA-URA, also known as Omar Garcia-Rodriguez, also known as
Isidro Ayala-Uri,
Defendant-Appellant
Cons. w/ No. 12-50328
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
OMAR GARCIA-RODRIGUEZ, also known as Isidro Ayala-Ura, also known as
Rafael Ayala,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-2862-1
USDC No. 3:12-CR-489-1
No. 12-50324
c/w No. 12-50328
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Isidro Ayala-Ura, also known as Omar Garcia-
Rodriguez and Isidro Ayala-Uri, appeals the concurrent 30-month within-
guidelines sentences imposed following his guilty-plea conviction on one count
of attempted illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(1), and one
count of false personation in immigration matters, in violation of 18 U.S.C. §
1546(a). He also appeals the consecutive 21-month sentence imposed following
the revocation of a prior term of supervised release.
Ayala-Ura contends that the 51-month combined sentence is substantively
unreasonable because it was greater than necessary to meet the sentencing goals
of 18 U.S.C. § 3553(a). The sentences imposed for Ayala-Ura’s new immigration
offenses and on the revocation of supervised release are separate sentences
imposed in separate criminal proceedings. See Johnson v. United States, 529
U.S. 694, 700 (2000). Moreover, we have rejected contentions that a consecutive
within-guidelines revocation sentence, like Ayala-Ura’s, renders the combined
sentence unreasonable. See United States v. Lopez-Velasquez, 526 F.3d 804,
808-09 (5th Cir. 2008). His challenge to the substantive reasonableness of the
combined sentence is without merit.
Neither has Ayala-Ura shown that his concurrent within-guidelines
sentences of 30 months are substantively unreasonable. See United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). We have rejected a claim
that the Sentencing Guidelines overstate the seriousness of illegal reentry
simply because the offense is a non-violent international trespass. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Further, Ayala-Ura’s
*
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. 12-50324
c/w No. 12-50328
assertions that his motive for reentering the United States, his low risk of
recidivism and his ineligibility for specific Bureau of Prisons programs justified
a lower sentence are insufficient to rebut the presumption of reasonableness.
See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United
States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). The instant record
reflects that the district court considered Ayala-Ura’s mitigation arguments and
ultimately concluded that a sentence at the top of the applicable guidelines
range was appropriate based on the circumstances of the case and the § 3553(a)
factors. That we might reasonably conclude that a different sentence was
appropriate is not a sufficient reason to justify reversal. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Williams, 517 F.3d 801, 809 (5th Cir.
2008).
Ayala-Ura has also failed to show that the consecutive 21-month within-
guidelines revocation sentence is substantively or plainly unreasonable. See
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). We review preserved
challenges to revocation sentences under the deferential plainly unreasonable
standard. Id. In so doing, we “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Id. (internal
quotation marks and citation omitted). If we conclude that the sentence is
unreasonable, we then determine “whether the error was obvious under existing
law.” Id. Ayala-Ura contends that the plainly unreasonable standard adopted
by Miller is incorrect and that revocation sentences should be reviewed under
the standard of reasonableness set forth in United States v. Booker, 543 U.S. 220(2005). He acknowledges, however, that his argument is foreclosed and that he
merely seeks to preserve the issue for further review.
The 21-month revocation sentence was within the range recommended by
the policy statements and within the statutory maximum term of imprisonment
that the district court could have imposed. See 18 U.S.C. § 3583(e)(3); U.S.S.G.
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No. 12-50324
c/w No. 12-50328
§ 7B1.4(a). As previously discussed, Ayala-Ura’s assertions that his motive for
reentering the United States, his low risk of recidivism, and his ineligibility for
particular Bureau of Prisons programs justified a lower sentence are insufficient
to rebut the presumption of reasonableness. See Gomez-Herrera, 523 F.3d at
565-66; Rodriguez, 523 F.3d at 526.
Accordingly, the district court’s judgments are AFFIRMED.
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