United States v. Simon Rodriguez

Case: 12-20345 Document: 00512243108 Page: 1 Date Filed: 05/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 15, 2013
No. 12-20345
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SIMON CASARES RODRIGUEZ, also known as Carmelo Ayala Perez, also
known as Simon Casares-Rodriguez, also known as Carlos Barrios Guzman, also
known as Carlos Barrios-Guzman, also known as Jesus Corona-Morales, also
known as Sergio Alama-Perez, also known as Sergio Alama Perez, also known
as Guzman Carlos Barrios, also known as Simon Rodriguez-Cazares, also known
as Simon Rodriguez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-571-1
Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Simon Casares Rodriguez appeals the sentence for his conviction of illegal
reentry following removal. He contends that his 120-month sentence, a variance
from the 77-96 month guideline sentencing range, is substantively unreasonable.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20345 Document: 00512243108 Page: 2 Date Filed: 05/15/2013
No. 12-20345
Specifically, Rodriguez argues that his sentence was substantively unreasonable
because the district court did not take into account his youth when he came to
the United States; the 24 months he spent in state custody and one month he
spent in immigration custody after he was found by immigration authorities in
2009; or the fact that his longest previous sentence was 76 months of
imprisonment, which he argues suggests that a sentence within the guideline
sentencing range would be sufficient to deter him from committing any further
immigration offenses. Moreover, Rodriguez contends, the district court erred by
failing to consider whether any sentence of less than 120 months would have
been sufficient to satisfy the goals of 18 U.S.C. § 3553(a).
In reviewing a non-guidelines sentence for substantive reasonableness, we
consider “the totality of the circumstances, including the extent of any variance
from the Guidelines range.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (internal quotation marks and citation omitted). We also review
whether the 18 U.S.C. § 3553(a) factors support the sentence and give deference
to the district court’s determination that the § 3553(a) factors justify the
variance. Id. “A sentence is unreasonable if it (1) does not account for a factor
that should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” United States v. Peltier, 505 F.3d 389, 392
(5th Cir. 2007) (internal quotation marks and citation omitted).
Despite having incurred several convictions and having served more than
six years in prison, Rodriguez illegally reentered the United States for the sixth
time, a federal felony offense, 8 U.S.C. § 1326(a), and committed robbery, a
Texas state criminal offense, for which he served two more years of
imprisonment. Moreover, Rodriguez’s previous convictions suggest a history of
violence and his six illegal reentries into the United States demonstrated his
indifference to federal immigration law. It was not an abuse of discretion for the
district court to weigh heavily the nature and extent of Rodriguez’s criminal
2
Case: 12-20345 Document: 00512243108 Page: 3 Date Filed: 05/15/2013
No. 12-20345
history, the ineffectiveness of the punishments previously imposed to deter
criminal behavior, and the need to protect the public from Rodriguez.
Rodriguez’s arguments as to his age when he first entered the country; the
length of his previous sentence; the time he spent in state custody and
immigration custody; and the consideration of sentences lower than 120 months
of imprisonment are unavailing.
AFFIRMED.
3