USA v. Jaime-Villafuerte

Filing 920090910

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-51211 Summary Calendar September 9, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JUAN MANUEL JAIME-VILLAFUERTE, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-2128-ALL

Before WIENER, DEMOSS, and SOUTHWICK, Circuit Judges. PER CURIAM:* Juan Manuel Jaime-Villafuerte (Jaime), a Mexican citizen, appeals the 50month prison sentence imposed by the district court after he pleaded guilty to illegal reentry pursuant to 8 U.S.C. § 1326(a). He argues that the sentence is greater than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a)and specifically asserts that, in light of Kimbrough v. United States, 128 S. Ct. 558 (2007), the presumption of reasonableness does not apply to his

Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4.

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No. 08-51211 within-guidelines sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is flawed in that it is not supported by empirical studies. Jaime further asserts that the 16-step offense level enhancement he received pursuant to § 2L1.2(b)(1)(A)(I) for a prior drug offense conviction over represented the seriousness of his criminal history and his propensity to commit future crimes. We have consistently rejected Jaime's "empirical data" argument, concluding that Kimbrough does not question the presumption of reasonableness and does not require district or appellate courts to independently analyze the empirical grounding behind each individual guideline. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed (June 24, 2009) (No. 08-11099). Accordingly, Jaime's correctly calculated within-guidelines sentence is afforded a presumption of reasonableness. See Duarte, 569 F.3d at 529-30. Jaime has not rebutted that presumption. See United States v. CamposMaldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). Jaime has not shown that the 50-month sentence imposed by the district court was unreasonable. The record demonstrates that the district court

properly made an individualized assessment to determine whether a sentence within the guidelines range was sufficient but not greater than necessary to achieve the goals of § 3553(a). See Rita v. United States, 127 S. Ct. 2456, 2463 (2007). The judgment of the district court is AFFIRMED.

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