USA v. Ricardo Cardona-Rodriguez

Filing

UNPUBLISHED OPINION FILED. [09-50601 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 04/28/2011 for Appellant Ricardo Cardona-Rodriguez [09-50601]

Case: 09-50601 Document: 00511438096 Page: 1 Date Filed: 04/07/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 09-50601
Summary Calendar

April 7, 2011
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICARDO CARDONA-RODRIGUEZ,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-51-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Ricardo Cardona-Rodriguez pleaded guilty to illegal reentry after
deportation and was sentenced to 30 months of imprisonment and three years
of supervised release. He challenges the substantive reasonableness of his
sentence, arguing that his sentence is unreasonable because it is greater than
necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a); that the
Guideline for illegal reentry, U.S.S.G. § 2L1.2, “systematically overstates the
risk of recidivism and the risk of danger that illegal reentry defendants pose” by
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 09-50601
giving too much weight to a prior conviction to increase the offense level; that his
prior conviction was 10 years old; that a sentence within the advisory guideline
range should not be afforded the appellate presumption of reasonableness, citing
Kimbrough v. United States, 552 U.S. 85, 109-11 (2007); and that the guideline
range overstated the seriousness of the offense, which was essentially an
international trespass, and failed to account for his personal history and
characteristics as a hard-working man just seeking to look for work and help his
family.
Cardona-Rodriguez did not make any objections to his sentence or argue
in the district court that his sentence was unreasonable.

Therefore, his

arguments are reviewable only for plain error. See Puckett v. United States, 129
S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007) (requiring objection to substantive unreasonableness of sentence to
preserve error).
Although Cardona-Rodriguez challenges the application of the appellate
presumption of reasonableness to sentences imposed under § 2L1.2, he
acknowledges that the issue is foreclosed by United States v. MondragonSantiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We
have previously rejected the argument that illegal reentry is merely a trespass
offense that is treated too harshly under § 2L1.2. See United States v. AguirreVilla, 460 F.3d 681, 683 (5th Cir. 2006). It is not unreasonable to impose an
enhancement under § 2L1.2 when the enhancing conviction is too old to receive
criminal history points. See § 2L1.2, cmt. n.1(B)(vii) (indicating that the date
of the predicate conviction is not a relevant inquiry for purposes of § 2L1.2).
The district court heard the arguments of Cardona-Rodriguez and his
counsel concerning his reasons for reentering the United States before imposing
a sentence within the advisory guideline range. The district court considered
Cardona-Rodriguez’s personal history and characteristics noted above and the
other statutory sentencing factors in § 3553(a) prior to imposing a sentence
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No. 09-50601
within the Guidelines.

Cardona-Rodriguez’s within-guidelines sentence is

entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S.
338, 347 (2007). Cardona-Rodriguez has failed to show that the presumption
should not apply. The district court did not abuse its discretion, much less
plainly err, in imposing a sentence within the advisory guideline range. See Gall
v. United States, 552 U.S. 38, 50-51 (2007). Accordingly, the judgment of the
district court IS AFFIRMED.

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