USA v. Juan Guevara-Rivera

Filing 511082006

Case: 09-40615

Document: 00511082006

Page: 1

Date Filed: 04/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40615 S u m m a r y Calendar April 15, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in t iff - Appellee v. J U A N GUEVARA-RIVERA, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:09-CR-174-1

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* F o llo w in g his guilty plea to illegal reentry after deportation, Juan G u e v a r a - R iv e r a was sentenced to fifty-seven months of imprisonment, which w a s within the applicable guidelines range. On appeal, he argues that the d i s tr ic t court committed procedural error by failing to address his arguments for a lesser sentence and that the sentence imposed was substantively u n r e a s o n a b le .

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40615

Document: 00511082006 Page: 2 No. 09-40615

Date Filed: 04/15/2010

" [W ]h e n a judge decides simply to apply the Guidelines to a particular c a s e , doing so will not necessarily require lengthy explanation." Rita v. United S ta t e s , 551 U.S. 338, 356 (2007). The requirement that the district court explain it s sentence may be satisfied if the district court listens to arguments and then in d ic a te s that a sentence within the guidelines range is appropriate. Id. at 3575 9 . Here, the district court heard counsel's argument for a lesser sentence, s p e c ific a lly rejected those arguments, and stated that a sentence within the a p p lic a b le guidelines range satisfied the factors of 18 U.S.C. § 3553(a). See U n ite d States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). Guevara-Rivera suggests that his sentence is substantively unreasonable b e c a u s e , in calculating his sentencing range, a single prior conviction resulted in both a sixteen-level enhancement and six of his seven criminal history points. H o w e v e r , the Guidelines provide for consideration of a prior conviction for both c r im in a l history and the U.S.S.G. § 2L1.2 enhancement. See § 2L1.2, cmt. n.6. W e have rejected the argument that such "double-counting" renders a sentence u n r e a s o n a b le . See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. d e n i ed , 130 S. Ct. 378 (2009). " A discretionary sentence imposed within a properly calculated guidelines r a n g e is presumptively reasonable." United States v. Campos-Maldonado, 531 F .3 d 337, 338 (5th Cir. 2008) (citations omitted). The fact that this court "might r e a s o n a b ly have concluded that a different sentence was appropriate is in s u f fic ie n t to justify reversal of the district court." Gall v. United States, 552 U .S . 38, 51 (2007). We conclude there is "no reason to disturb" the presumption o f reasonableness in this case. See Rodriguez, 523 F.3d at 526. AFFIRMED.

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