United States v. Enrique Mendoza-Contreras

Case: 12-50267 Document: 00512145688 Page: 1 Date Filed: 02/18/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2013
No. 12-50267
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ENRIQUE MENDOZA-CONTRERAS,
Defendant - Appellant
Cons. w/ No. 12-50273
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ENRIQUE MENDOZA-CONTRERAS, also known as Juan Contreras Mendoza,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-1152-1
USDC No. 2:11-CR-1482-1
Case: 12-50267 Document: 00512145688 Page: 2 Date Filed: 02/18/2013
No. 12-50267 c/w No. 12-50273
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Enrique Mendoza-Contreras appeals the sentences imposed following his
guilty plea conviction for illegal reentry into the United States after deportation
and the revocation of his previously imposed term of supervised release. He
argues that the 71-month within-guidelines sentence imposed for his illegal
reentry conviction is substantively unreasonable because the district court did
not consider his personal history and characteristics and his reason for returning
to this country without permission. He also asserts that the advisory guidelines
sentencing range was too high because his offense level was increased by 16
levels for a temporally remote drug-trafficking conviction and that same drug-
trafficking conviction was used in calculating his criminal history score.
Mendoza-Contreras argues that his sentencing range was too high compared to
the average illegal reentry sentence and because illegal reentry is a mere
trespass offense.
We will review the substantive reasonableness of Mendoza-Contreras’s 71-
month sentence for plain error since he made no challenge on that basis in the
district court. See Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Ruiz, 621 F.3d 390, 397-98 (5th Cir. 2010). The sentence imposed by
the district court was not substantively unreasonable. We have rejected
arguments that double-counting like that complained of by Mendoza-Contreras
necessarily renders a sentence unreasonable. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009). We have also rejected the argument that illegal
reentry is merely a trespass offense that is treated too harshly under U.S.S.G.
§ 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
The record indicates that the district court considered Mendoza-Contreras’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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arguments in mitigation of his sentence and was aware of his personal history
and background, substance abuse issues, lack of education, and reasons for
returning to this country as set forth in the Presentence Report that the district
court adopted. The district court determined that a sentence within the properly
calculated advisory guidelines range was appropriate, and the sentence is
entitled to a presumption of reasonableness. See United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006). Mendoza-Contreras has failed to rebut the
presumption of reasonableness as he simply reasserts the arguments considered
by the district court, but he does not show that the district court failed to give
proper weight to his arguments or any particular 18 U.S.C. § 3553(a) factor. 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).
Mendoza-Contreras argues that the 10-month within-policy-guidelines
revocation sentence was substantively unreasonable because the 71-month
sentence was unreasonable and influenced the district court’s decision on the
revocation sentence, the sentence was greater than necessary to achieve the
purposes of § 3553(a), and his reentry offense was not violent. In the district
court, Mendoza-Contreras did not challenge substantive reasonableness of his
revocation sentence. Therefore, we review only for plain error. See United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
Because the 10-month revocation sentence did not exceed the two-year
statutory maximum term of imprisonment and was within the applicable policy
range of 8 to 14 months, it was a legal sentence. See 18 U.S.C. § 3583(e)(3);
U.S.S.G. § 7B1.4, p.s.; United States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997).
The district court exercised its discretion to order that the revocation sentence
be served consecutively to the 71-month sentence for the illegal reentry
conviction. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c) & comment. (n.3(C)).
Because the sentence fell within the statutory range and was in keeping with the
Guidelines’ advice regarding the imposition of consecutive sentences, the
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No. 12-50267 c/w No. 12-50273
sentence is entitled to a presumption of reasonableness. See United States v.
Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). Mendoza-Contreras’s
disagreement with the district court’s weighing of the § 3553(a) factors does not
demonstrate the district court committed error, plain or otherwise. See Gall v.
United States, 552 U.S. 38, 51 (2007); Whitelaw, 580 F.3d at 259-60.
AFFIRMED.
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