USA v. Antonio Perez-Luna

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USA v. Antonio Perez-Luna

Doc. 0

Case: 09-40862

Document: 00511191139

Page: 1

Date Filed: 08/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40862 S u m m a r y Calendar August 2, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A N T O N I O PEREZ-LUNA, 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. 7:08-CR-1643-1

B e fo r e JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges. P E R CURIAM:* F o llo w in g his guilty plea to illegal presence in the United States following d e p o r t a t io n , Antonio Perez-Luna was sentenced to 46 months in prison, which w a s within the applicable guidelines range. On appeal, he argues that the d is t r 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

Case: 09-40862

Document: 00511191139 Page: 2 No. 09-40862

Date Filed: 08/02/2010

" [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 te s , 551 U.S. 338, 356 (2007). The requirement that the district court explain i t s sentence may be satisfied if the district court listens to arguments and 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 arguments for a lesser sentence and s t a t e d that a sentence within the applicable guidelines range satisfied the fa c t o r s of 18 U.S.C. § 3553(a). See United States v. Rodriguez, 523 F.3d 519, 5252 6 (5th Cir. 2008). P e r e z -L u n a suggests that his sentence is substantively unreasonable in lig h t of his family ties, his lengthy residence in the United States, and his benign r e a s o n s for returning to the country. "A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable." United S ta te s v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Although P e r e z -L u n a contends that this court should not apply the presumption of r e a s o n a b le n e s s because the 16-level enhancement authorized under U.S.S.G. § 2L1.2 is not empirically based, we have rejected such a contention. See United S ta te s v. Duarte, 569 F.3d 528, 530 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). The fact that this court "might reasonably have concluded that a different s e n te n c e was appropriate is insufficient to justify reversal of the district court." Gall, 552 U.S. at 51. We conclude there is "no reason to disturb" the

p r e s u m p t io n of reasonableness in this case." See Rodriguez, 523 F.3d at 526. Consequently, the judgment of the district court is AFFIRMED.

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