United States v. Marlon Bonilla

Case: 14-50149 Document: 00512846957 Page: 1 Date Filed: 11/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-50149
Fifth Circuit
FILED
Summary Calendar November 24, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MARLON ALEXANDER BONILLA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1120
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Marlon Alexander Bonilla appeals the 60-month within guidelines
sentence imposed following his guilty plea conviction to illegal reentry, in
violation of 8 U.S.C. § 1326. He contends that the sentence is substantively
unreasonable because it was greater than necessary to satisfy the sentencing
goals in 18 U.S.C. § 3553(a). He argues that the guideline range was too high
to fulfill § 3553(a)’s goals because U.S.S.G. § 2L1.2 is not empirically based and
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50149 Document: 00512846957 Page: 2 Date Filed: 11/24/2014
No. 14-50149
effectively double counts a defendant’s criminal record. He also contends that
the range overstated the seriousness of his nonviolent reentry offense and
failed to account for his personal history and characteristics.
We review the substantive reasonableness of the sentence for an abuse
of discretion. United States v. Delgado-Martinez, 564 F.3d 750, 751-52 (5th
Cir. 2009). We apply a rebuttable presumption of reasonableness to a within
guidelines sentence. United States v. Mondragon-Santiago, 564 F.3d 357, 360
(5th Cir. 2009).
In reliance on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007),
and for purposes of preserving the issue for possible further review, Bonilla
argues that the presumption of reasonableness should not apply because the
illegal reentry guideline lacks an empirical basis. As Bonilla concedes, his
argument is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67.
We have consistently rejected “double counting” arguments and
arguments that U.S.S.G. § 2L1.2 results in excessive sentences because it is
not empirically based. See Duarte, 569 F.3d at 529-31. We also have rejected
the “trespass” argument that Bonilla asserts. See United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir. 2006).
The district court considered Bonilla’s arguments for a lower sentence.
Bonilla has not shown that his sentence does not account for a sentencing
factor that should receive significant weight, gives significant weight to an
irrelevant or improper factor, or represents a clear error of judgment in
balancing sentencing factors. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009). Mere disagreement with the propriety of his sentence or with
the weight given to § 3553(a) factors does not suffice to rebut the presumption
of reasonableness that attaches to a within guidelines sentence. See United
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Case: 14-50149 Document: 00512846957 Page: 3 Date Filed: 11/24/2014
No. 14-50149
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). The judgment of the district
court is AFFIRMED.
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