USA v. Argumedo-Cardiel

Filing 920090914

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 11, 2009 No. No. 09-50128 Summary Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff - Appellee v. JESUS ANTONIO ARGUMEDO-CARDIEL, also known as Antonio Cardiel Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-2519-ALL

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Jesus Antonio Argumedo-Cardiel (Argumedo) appeals the 16-month sentence imposed following his guilty plea conviction for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He contends that the sentence was greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a), and was therefore substantially unreasonable. Specifically, Argumedo argues that the advisory guideline range was too severe because U.S.S.G. §

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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

*

No. No. 09-50128 2L1.2 gives heavy weight to the defendant's prior convictions in calculating the offense level, effectively double-counting the defendant's prior convictions. He also argues that the advisory guideline range was too severe to account for his non-violent illegal reentry offense and that his motive for reentering was a factor that mitigated the seriousness of his crime. We review the "substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard."1 This court has rejected the argument that using a prior conviction to both increase the offense level and calculate the criminal history is impermissible "double-counting." 2 The district court considered Argumedo's request for a sentence at the bottom of the applicable guideline range, and it ultimately determined that a sentence at the top of that range was appropriate based on the circumstances of the case and the § 3553(a) factors. Argumedo's assertions that the non-violent nature of his offense and his motive for reentering the United States justified a lower sentence are insufficient to rebut the presumption of reasonableness.3 As Argumedo has not demonstrated the district court's

imposition of a sentence at the top of the guideline range was an abuse of discretion, the district court's judgment is AFFIRMED.

1

United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009). See United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995). See United States v. Gomez-Herra, 523 F.3d 554, 565 (5th Cir. 2008).

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