United States v. Victor Marin-Gutierrez

Case: 10-40555 Document: 00511487642 Page: 1 Date Filed: 05/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 24, 2011
No. 10-40555
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR MANUEL MARIN-GUTIERREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:09-CR-2087-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Victor Manuel Marin-Gutierrez (Gutierrez) appeals the 42-month prison
sentence imposed following his guilty plea conviction for attempted illegal
reentry after a previous deportation. As a threshold matter, Gutierrez argues
that a presumption of reasonableness should not apply to his within-guidelines
sentence on appellate review because the Guideline upon which it is based,
U.S.S.G. § 2L1.2, is penologically flawed and not the result of empirical evidence
or study. As Gutierrez acknowledges, this argument is foreclosed. See United
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40555 Document: 00511487642 Page: 2 Date Filed: 05/24/2011
No. 10-40555
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130
S. Ct. 192 (2009); see also United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009).
Gutierrez asserts that, even if the presumption of reasonableness applies,
it is rebutted by the facts and circumstances of this case. The district court
considered and rejected Gutierrez’s arguments for a sentence below his advisory
guidelines range. With reference to the sentencing factors set forth in 18 U.S.C.
§ 3553(a) and after consideration of the arguments made in support of a sentence
below Gutierrez’s guidelines range, the court determined that a sentence within
the range was indicated. Gutierrez has not rebutted the presumption of
reasonableness attaching to his within-guidelines sentence on appellate review.
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 district court did not
abuse its discretion by ordering a within-guidelines sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007).
Gutierrez also argues that the written judgment incorrectly states that his
offense of conviction is illegal reentry rather than attempted illegal reentry. He
requests a remand to correct the judgment. We remand to the district court for
the limited purpose of correcting the judgment to reflect the correct offense of
conviction.
AFFIRMED; REMANDED FOR LIMITED PURPOSE OF CORRECTING
JUDGMENT.
2