USA v. Juan Gandara-Gonzalez

Filing 511103951

Case: 09-50590

Document: 00511103951

Page: 1

Date Filed: 05/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50590 S u m m a r y Calendar May 7, 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 U A N ANTONIO GANDARA-GONZALEZ, 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 Western District of Texas U S D C No. 3:09-CR-439-1

B e fo r e JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges. P E R CURIAM:* T h e district court sentenced Juan Antonio Gandara-Gonzalez to serve 46 m o n th s in prison and a three-year term of supervised release following his c o n v ic tio n of one count of illegal reentry into the United States. In this appeal, G a n d a r a -G o n z a le z challenges his sentence, which was within the applicable g u id e l in e s range, as being too severe. He argues that the pertinent Guideline, U .S .S .G . § 2L1.2, is flawed because it is not empirically based and because it ig n o r e s the remote nature of his prior offense as well as his age. In GandaraPursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50590

Document: 00511103951 Page: 2 No. 09-50590

Date Filed: 05/07/2010

G o n z a le z 's opinion, his sentence is unduly harsh because the district court did n o t properly weigh the sentencing factors given in 18 U.S.C. § 3553(a). F o llo w in g United States v. Booker, 543 U.S. 220 (2005), we review se n te n ce s for reasonableness in light of the sentencing factors in § 3553(a). U n ite d States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall v . United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the s e n t e n c e imposed by the district court. United States v. Delgado-Martinez, 5 6 4 F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court c o m m it t e d a "significant procedural error." Id. at 752-53. If there is no such e r r o r, we then review the substantive reasonableness of the sentence imposed fo r an abuse of discretion. Id. at 751-53. Gandara-Gonzalez's arguments concerning the district court's balancing o f the § 3553(a) factors amount to a disagreement with the district court's w e ig h in g of these factors and the appropriateness of his within-guidelines s e n t e n c e . This disagreement does not suffice to show error in connection with h is sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), p e t i t i o n for cert. filed (Feb. 19, 2010) (No. 09-9216); United States v. GomezH e r re r a , 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). His c la im that his sentence is improper due to the flawed nature of § 2L1.2 is lik e w is e unavailing. See United States v. Mondragon-Santiago, 564 F.3d 357, 3 6 5 -6 7 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Gandara-Gonzalez has not s h o w n that his sentence was either procedurally or substantively unreasonable, n o r has he rebutted the presumption of reasonableness that attaches to his w ith in -g u id e lin e s sentence. See United States v. Armstrong, 550 F.3d 382, 405 (5 th Cir. 2008), cert. denied, 130 S. Ct. 54 (2009); United States v. Alonzo, 4 3 5 F.3d 551, 554 (5th Cir. 2006). T h e judgment of the district court is AFFIRMED.

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