United States v. Heriberto Castrillo-Rubio

Case: 09-51162 Document: 00511188577 Page: 1 Date Filed: 07/29/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 29, 2010
No. 09-51162
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERIBERTO CASTRILLO-RUBIO, a/k/a Albert Salazar-Rubio, a/k/a Heriberto
Castrillo, a/k/a as Eddie Castrillo, a/ka Eduardo Rubio, a/k/a Heriberto Castillo-
Rubio, a/k/a Eddie Rubio,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-2285-1
Before GARWOOD, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Heriberto Castrillo-Rubio (Castrillo) pleaded guilty, without a plea
agreement, to illegally reentering the United States after having been deported.
The probation officer calculated his offense level under the United States
Sentencing Commission’s Guidelines Manual (Sentencing Guidelines or
Guidelines) as being twenty-one, which included a sixteen-level enhancement for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-51162
having been deported after committing a drug-trafficking offense.
See USSG § 2L1.2(b)(1)(A)(i). This offense level, combined with a criminal
history category of V, led to a Guidelines range of seventy to eighty-seven
months’ imprisonment. The district court imposed a term of seventy-eight
months.
Castrillo challenges the substantive reasonableness of his sentence.
Because he objected to the sentence in the district court, our review is for abuse
of discretion. See United States v. Neal, 578 F.3d 270, 273 (5th Cir. 2009). We
will uphold the sentence as long as it is reasonable, and we presume that a
sentence within the Guidelines, like Castrillo’s, is reasonable. United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).
Castrillo first challenges his sentence as having been unreasonably long
because the court where he was sentenced did not have a “fast-track” program.
He concedes that this line of argument is foreclosed by our precedent, but he
raises it in order to preserve it for appeal. See United States v. Gomez-Herrera,
523 F.3d 554, 563 & n.4 (5th Cir. 2008).
According to Castrillo, the Sentencing Guidelines also overstated the
seriousness of his illegal-reentry because the same prior drug offense used to
support the sixteen-level increase under § 2L1.2 also contributed to his criminal
history score, causing the Guidelines to double-count this offense. He further
contends that the Guidelines overstate the seriousness of illegal-reentry in
general, arguing that illegal reentry is merely an international trespass.
However, we have addressed and rejected both of these arguments in the past.
See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.) (double-counting
argument), cert. denied, 130 S. Ct. 378 (2009); United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006) (characterization of illegal reentry as trespass
offense).
Finally, Castrillo asserts that his sentence is unreasonably high because,
in his view, it fails to take into account that he arrived in the United States
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No. 09-51162
when he was five years old, that, at one time, he was a lawful permanent
resident in this country, and that his asserted, but uncorroborated, motive for
returning to the United States was that he feared for his life in Mexico. But
Castrillo’s cultural assimilation in the United States does not require a non-
Guidelines sentence. United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir. 2008). Likewise, his motive for returning does not make his sentence
unreasonable. The district court heard and understood these arguments,
commenting extensively on Castrillo’s family ties in the United States and the
problem of violence in Mexico, but it ultimately rejected the contention that
these factors outweighed the other sentencing considerations, especially in view
of his significant criminal history. See United States v. Campos-Maldonado, 531
F.3d 337, 339 (5th Cir. 2008).
Castrillo has not overcome the presumption that his Guidelines sentence
is reasonable. Accordingly, his sentence is affirmed.
AFFIRMED.
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