United States v. Lopez-Garcia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2008
No. 07-41140
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN JOSE LOPEZ-GARCIA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-167-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Juan Jose Lopez-Garcia appeals the sentence of 84 months imposed
following his plea of guilty to one count of being unlawfully present in the United
States following deportation, a violation of 8 U.S.C. § 1326. We affirm.
Lopez-Garcia argues that in light of Gall v. United States, 128 S. Ct. 586
(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), his sentence was
unreasonable. According to Lopez-Garcia, this court’s precedent improperly
*
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should not be published and is not precedent except under the limited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.
No. 07-41140
restricted the district court’s ability to deviate from the Guidelines absent
extraordinary circumstances, a standard rejected in Gall. He also challenges the
imposition of a 16-level enhancement pursuant to U.S.S.G. § 2L1.2, asserting
that the Guideline is flawed and not entitled to deference because, like the
Guideline at issue in Kimbrough, it was not based on empirical data or adopted
pursuant to the usual Sentencing Commission procedures.
Although Lopez-Garcia argued that he should receive a downward
departure or variance based on the over-representation of his criminal history,
his cultural assimilation, and his former drug addiction, he did not raise the
specific challenges to his sentence that he raises here, i.e., that the sentencing
regime was unduly restrictive or that the 16-level enhancement Guideline is
flawed and not entitled to deference. Accordingly, we review those arguments
for plain error. See United States v. Rodriguez-Rodriguez, 520 F.3d 381, 387-88
(5th Cir. 2008); United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). Given our dispositions of similar challenges in Rodriguez-Rodriguez and
Campos-Maldonado, we conclude that Lopez-Garcia has failed to demonstrate
any reversible plain error. To the extent that Lopez-Garcia may have preserved
a substantive reasonableness challenge to his sentence based on the arguments
he raised in the district court, he has failed to overcome the presumption of
reasonableness that we afford the district court’s sentence. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
The judgment of the district court is AFFIRMED.
2