USA v. Jaime Rivas

Filing 920100504

Case: 09-20318

Document: 00511099713

Page: 1

Date Filed: 05/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-20318 Summary Calendar May 4, 2010 Lyle W. Cayce Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAIME ANTONIO RIVAS, also known as Miguel Angel Santos, also known as Basil Ray Roquemore, also known as Michael Lee Cameron, also known as Elloy Carrillo, Jr., Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:08-CR-801-1

Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* Defendant-Appellant Jaime Antonio Rivas appeals the 57-month sentence imposed following his guilty-plea conviction for illegal reentry after his deportation subsequent to committing an aggravated felony. Rivas contends that his sentence violates the Eighth Amendment because it is cruel and unusual and grossly disproportionate to his offense in light of the age of his prior

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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

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Case: 09-20318

Document: 00511099713 Page: 2 No. 09-20318

Date Filed: 05/04/2010

conviction and his law-abiding behavior since his return to the United States. As Rivas did not object to his sentence on Eighth Amendment grounds, we review it for plain error. See United States v. Martinez, 496 F.3d 387, 389 (5th Cir. 2007). Rivas has not established that his 57-month sentence, within the applicable guidelines range, was disproportionately harsh. See Rummel v.

Estelle, 445 U.S. 263, 284-85 (1980); United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993). Rivas also contends that his sentence violates the Equal Protection Clause because his high total offense level results in the same sentence as those imposed on individuals with higher criminal history categories and because the sentence he received is no longer than those imposed on individuals who illegally reenter the United States, but do not have prior aggravated felonies. Again, our review is for plain error. See Martinez, 496 F.3d at 389. Rivas has not

established that "other persons similarly situated as is the claimant unfairly enjoy benefits that he does not or escape burdens to which he is subjected." United States v. Cronn, 717 F.2d 164, 169 (5th Cir. 1983); see also CardenasAlvarez, 987 F.3d at 1134. The sentence imposed by the district court is thus AFFIRMED.

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