United States v. Uverclain Dominguez-Espinoza

Case: 14-50231 Document: 00512836974 Page: 1 Date Filed: 11/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50231 FILED
Summary Calendar November 14, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
UVERCLAIN DOMINGUEZ-ESPINOZA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1097-1
Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
Uverclain Dominguez-Espinoza pleaded guilty to illegal reentry after
deportation in violation of 8 U.S.C. § 1326 and was sentenced to 46 months of
imprisonment and three years of supervised release. Dominguez-Espinoza
challenges the substantive reasonableness of his sentence, arguing that his
sentence is unreasonable because it is greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a). He contends that the illegal reentry
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50231
Guideline, U.S.S.G. § 2L1.2, is not empirically based and is therefore not
subject to the presumption of reasonableness normally due to within-guideline
sentences. He concedes that this argument is foreclosed by United States v.
Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 2009). He raises the
argument to preserve it for possible review by the Supreme Court. He further
argues that the guidelines double-counted his criminal record, produced a
range overstating the seriousness of the offense, and failed to account for his
benign motive for reentering the country, his family circumstances, and his
cultural assimilation.
We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007). A within-guidelines sentence is entitled to a
presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). “The presumption is rebutted only upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
As he so concedes, Dominguez-Espinoza’s argument that the
presumption of reasonableness should not apply to his sentence because
§ 2L1.2 lacks empirical support has been rejected by this court. See
Mondragon-Santiago, 564 F.3d at 366-67 & n.7. In addition, Dominguez-
Espinoza’s arguments that the double-counting of a prior conviction makes his
sentence unreasonable and that the guidelines overstate the seriousness of
illegal reentry because it is, “at bottom, an international trespass” have also
been previously rejected. See United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
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No. 14-50231
2006). Finally, Dominguez-Espinoza’s argument concerning his benign motive
for reentry fails to rebut the presumption of reasonableness. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
The district court heard Dominguez-Espinoza’s arguments concerning
his reasons for reentering the United States before imposing a sentence within
the advisory guidelines range. The district court considered Dominguez-
Espinoza’s personal history and characteristics and the other statutory
sentencing factors in § 3553(a) prior to imposing the sentence. Dominguez-
Espinoza’s disagreement with the district court’s weighing of the § 3553(a)
factors is insufficient to rebut the presumption of reasonableness that attaches
to a within-guidelines sentence. See Cooks, 589 F.3d at 186.
Dominguez-Espinoza has not demonstrated that the district court
abused its discretion by sentencing him to a within-guidelines sentence of 46
months. See Gall, 552 U.S. at 51. The judgment of the district court is
AFFIRMED.
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