USA v. Jorge Zavala-Rosales

Filing 511136496

USA v. Jorge Zavala-Rosales

Doc. 511136496

Case: 09-40819

Document: 00511136496

Page: 1

Date Filed: 06/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40819 S u m m a r y Calendar June 9, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. J O R G E OMAR ZAVALA-ROSALES, 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 Southern District of Texas U S D C No. 7:09-CR-28-1

B e fo r e KING, STEWART and HAYNES, Circuit Judges. P E R CURIAM:* F o llo w in g his guilty plea to being unlawfully present in the United States a f t e r deportation, Jorge Omar Zavala-Rosales was sentenced to 46 months of im p r is o n m e n t , which was at the bottom of the applicable guidelines range. On a p p e a l, he argues that the district court committed procedural error by failing t o address his arguments for a lesser sentence and that the sentence imposed w a s substantively unreasonable.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 09-40819

Document: 00511136496 Page: 2 No. 09-40819

Date Filed: 06/09/2010

" [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.), cert. denied, 129 S . Ct. 624 (2008). Zavala-Rosales suggests that his sentence is substantively unreasonable b e c a u s e , in calculating his sentencing range, a single prior robbery conviction r e s u lt e d in both a 16-level enhancement and all five of his criminal history p o i n t s . However, the Guidelines provide for consideration of a prior conviction fo r both criminal history and the U.S.S.G. § 2L1.2 enhancement. See § 2L1.2, c o m m e n t . (n.6). We have rejected the argument that such "double-counting" r e n d e r s a sentence unreasonable. See United States v. Duarte, 569 F.3d 528, 5 2 9 -3 1 (5th Cir.), cert. denied, 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.), cert. denied, 129 S. Ct. 328 (2008). The fact that this c o u r t "might reasonably have concluded that a different sentence was a p p r o p r ia t e is insufficient to justify reversal of the district court." Gall, 552 U.S. a t 51. We conclude there is "no reason to disturb" the presumption of

r e a s o n a b le n e s s in this case. See Rodriguez, 523 F.3d at 526. AFFIRMED.

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