USA v. Jorge Sura-Villalta

Filing 511131031

USA v. Jorge Sura-Villalta

Doc. 511131031

Case: 09-41024

Document: 00511131031

Page: 1

Date Filed: 06/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41024 S u m m a r y Calendar June 3, 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 ALBERTO SURA-VILLALTA, 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. 1:09-CR-599-1

B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* Jorge Alberto Sura-Villalta (Sura) appeals the 46-month within-guidelines s e n t e n c e imposed in connection with his guilty-plea conviction for illegal reentry fo llo w in g deportation. Sura, citing Kimbrough v. United States, 552 U.S. 85 (2 0 0 7 ), argues that his sentence is procedurally unreasonable because U.S.S.G. § 2L1.2 is not empirically based and is flawed. He also contends that the p r e s u m p t io n of reasonableness should not be applied to his sentence because § 2L1.2 is not based on empirical data. Sura further argues that his sentence is
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41024

Document: 00511131031 Page: 2 No. 09-41024

Date Filed: 06/03/2010

s u b s ta n tiv e ly unreasonable because it is based on a conviction that occurred in 1 9 9 5 , the district court failed to consider questionable circumstances s u r r o u n d in g the 1995 rape conviction, and the court failed to consider his m o t i v e s for returning to the United States. In consideration of these factors, S u r a asserts that his 46-month sentence is greater than necessary to accomplish t h e sentencing objectives of 18 U.S.C. § 3553(a) and contends that he should h a v e been sentenced below the guidelines range. I n reviewing a sentence, this court first examines whether the district c o u r t committed any procedural errors, "such as failing to calculate (or im p r o p e r ly calculating) the Guidelines range, treating the Guidelines as m a n d a t o r y , failing to consider the § 3553(a) factors, selecting a sentence based o n clearly erroneous facts, or failing to adequately explain the chosen sentence-in c lu d in g an explanation for any deviation from the Guidelines range." Gall v. U n ite d States, 552 U.S. 38, 51 (2007). S u r a 's argument that this court should not accord his within-guidelines senten ce a presumption of reasonableness because the applicable guideline is not s u p p o r te d by empirical data is foreclosed. See United States v. Duarte, 569 F.3d 5 2 8 , 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v. M o n d r a g o n - S a n t ia g o , 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 ( 2 0 0 9 ) . Sura acknowledges this argument is foreclosed but raises the issue to p r e s e r v e it for possible further review. S u r a 's contention that his sentence is procedurally unreasonable because § 2L1.2 is not based on empirical data is without merit. "Whatever appropriate d e v ia t io n s [Kimbrough] may permit or encourage at the discretion of the district ju d g e , Kimbrough does not force district or appellate courts into a piece-by-piece a n a ly sis of the empirical grounding behind each part of the sentencing g u id e l in e s . " Duarte, 569 F.3d at 530. The district court's rejection of Sura's a r g u m e n t in this regard was not procedural error.

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Case: 09-41024

Document: 00511131031 Page: 3 No. 09-41024

Date Filed: 06/03/2010

T h e substantive reasonableness of Sura's sentence is reviewed for abuse o f discretion. Gall, 552 U.S. at 51. A sentence imposed within a properly c a lc u la te d guidelines range is presumptively reasonable. A lo n z o , 435 F.3d 551, 554 (5th Cir. 2006) S u r a 's argument that his sentence does not take into account questionable c ir c u m s t a n ce s surrounding his prior rape conviction is without merit. The r e c o r d shows that the district court listened to Sura's arguments but ultimately d e t e r m in e d that a sentence within the guidelines range was appropriate. Sura's a s s e r t io n s regarding the age of his prior conviction and his motive for reentering t h e United States are insufficient to rebut the presumption of reasonableness. S e e United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Sura h a s not demonstrated that the district court's imposition of a sentence at the b o t t o m of the guidelines range was an abuse of discretion. T h e district court's judgment is AFFIRMED. United States v.

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