USA v. Sosa-Garcia

Filing 920090818

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-51287 C o n fe r e n c e Calendar August 18, 2009 Charles R. Fulbruge III Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. J A V IE R SOSA-GARCIA, D e fe n d a n t-A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 2:08-CR-537-ALL

B e fo r e HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges. P E R CURIAM:* J a v ie r Sosa-Garcia (Sosa) appeals the sentence imposed following his g u ilt y plea conviction for being unlawfully present in the United States following r e m o v a l. The district court sentenced Sosa to 57 months of imprisonment and t h r e e years of supervised release, a sentence at the low end of the guidelines s e n t e n c e range.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion s h o u ld not be published and is not precedent except under the limited c ir c u m s t a n ce s set forth in 5TH CIR. R. 47.5.4.

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No. 08-51287 S o s a argues that the sentence is not entitled to a presumption of r e a s o n a b le n e s s because the guideline provision on which it was based, U.S.S.G. § 2L1.2, is not empirically based. Sosa contends that the sentence was

s u b s ta n t iv e ly unreasonable because he was sentenced in a district without a fast tr a c k program, resulting in an unwarranted sentencing disparity between his s e n te n c e and sentences in districts with a fast track program. Sosa maintains t h a t the sentence was unreasonable because both his offense level and criminal h is t o r y category were raised due to his prior convictions, because he had a fo u r th -g r a d e education and needed work, and because he had a United Statesb o r n child with whom he wished to reconnect. W h ile Sosa sought a downward variance in the district court, he did not o b je c t to the sentence as unreasonable. Thus, his challenge to the

r e a s o n a b le n e s s of the sentence may be subject to plain error review. See United S ta t e s v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2 9 5 9 (2008). We need not determine, however, whether plain error review is a p p r o p r ia t e in this case because Sosa is not entitled to relief even assuming that h e preserved the reasonableness issue for review. See United States v.

R o d r ig u e z , 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). A s Sosa acknowledges, his argument that the sentence is not entitled to a presumption of reasonableness is foreclosed. See United States v. MondragonS a n t ia g o , 564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed (June 24, 2 0 0 9 ) (No. 08-11099). As Sosa concedes, his argument that the sentence was u n r e a s o n a b le because he was sentenced in a district without a fast track p r o g r a m is also foreclosed. See United States v. Gomez-Herrera, 523 F.3d 562-63 (5 th Cir.), cert. denied, 129 S. Ct. 624 (2008). The district court considered and r e je c t e d Sosa's arguments for a below-guidelines sentence. It determined that a sentence at the low end of the guidelines range was appropriate. As Sosa was s e n t e n c e d within the guidelines sentence range, the sentence is entitled to a

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No. 08-51287 p r e s u m p tio n of reasonableness, and Sosa has not shown sufficient reason for us to disturb the sentence. See id. at 565-66. A F F IR M E D .

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