Opinion
No. 08-50365 Summary Calendar.
November 20, 2008.
Joseph H. Gay, Jr, Assistant U.S. Attorney, Elizabeth Berenguer, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Henry Joseph Bemporad, Federal Public Defender, Judy Fulmer Madewell, Federal Public Defender's Office, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:07-CR-2811-ALL.
Before HIGGINBOTHAM, BARKSDALE and ELROD, Circuit Judges.
Santos Raul Laines-Funes pleaded guilty to illegally re-entering the United States after having been removed, in violation of 8 U.S.C. § 1326. He challenges only his sentence.
Because Laines had a prior conviction for a crime of violence, his advisory Sentencing Guidelines base offense level of eight was increased 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A). (Laines also received a three-level reduction for acceptance of responsibility.) Laines' total offense level of 21, and his criminal history category of IV, resulted in his having an advisory sentencing range of 57 to 71 months.
Laines requested a sentence below that range. The district court denied his request; and, in April 2008, Laines was sentenced, inter alia, to 71-months' imprisonment.
Although post- Booker, the Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the guideline sentencing range for use in deciding on the sentence to impose. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). In that respect, its application of the guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
Laines does not challenge the district court's sentencing-range calculation. Instead, he contends his 71-month sentence was greater than necessary to accomplish the sentencing goals listed in 18 U.S.C. § 3553(a)(2). Laines concedes that our court ordinarily applies a presumption of reasonableness to within-guidelines sentences. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008). Citing Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 574-75, 169 L.Ed.2d 481 (2007), Laines urges the presumption should not apply in this instance because Guideline § 2L1.2 is not "supported by empirical data or national experience". Laines additionally urges his instant offense: did not involve violent conduct; did not pose a danger to others; was not inherently evil; and "was, at bottom, an international trespass". Moreover, he contends his sentence did not account for his motivation for re-entering the United States — to be with his wife and children.
Kimbrough does not support Laines' contentions regarding § 2L1.2. See Kimbrough, 128 S.Ct. at 564-65; Campos-Maldonado, 531 F.3d at 338-39. The presumption of reasonableness is, therefore, applicable. See Campos-Maldonado, 531 F.3d at 338-39 The district court considered Laines' request for leniency in the light of his personal circumstances, but determined the within-guidelines 71-month sentence was appropriate. This was not an abuse of discretion.
AFFIRMED.