U.S. v. Sevilla-Rodriguez

Full title: UNITED STATES of America, Plaintiff-Appellee v. Samuel SEVILLA-RODRIGUEZ…

Court: United States Court of Appeals, Fifth Circuit

Date published: Mar 30, 2011

420 F. App'x 382 (5th Cir. 2011)

Opinion

No. 10-50521 Summary Calendar.

March 30, 2011.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.

M. Carolyn Fuentes, Federal Public Defender's Office, Henry Joseph Bemporad, Federal Public Defender, 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. 5:09-CR-879-1.

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Samuel Sevilla-Rodriguez appeals the 41-month sentence imposed in connection with his guilty plea conviction for illegal reentry. He argues that his sentence is unreasonable because it is greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). Specifically, Sevilla-Rodriguez contends that the illegal reentry guideline produces excessive sentences because it is not empirically based and over-states a defendant's criminal history and that the guidelines range did not adequately reflect his motive for reentering the country (reuniting with his son), his solid work history, or that this was his first illegal reentry offense.

Sevilla-Rodriguez's sentence is at the low end of the properly calculated guideline range and is presumptively reasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.) (rejecting the argument that a guidelines illegal reentry sentence was unreasonable because the guideline is not empirically based and emphasizes a defendant's criminal history), cert. denied, ___ U.S. ___, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009). As Sevilla-Rodriguez concedes, his argument that the presumption should not apply is foreclosed. United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). Sevilla-Rodriguez has not rebutted the presumption that his within-guidelines sentence is reasonable. See United States v. Campos-MaMonado, 531 F.3d 337, 339 (5th Cir. 2008); United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). The district court did not abuse its discretion in sentencing Sevilla-Rodriguez to 41 months of imprisonment. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

AFFIRMED.