USA v. Pedro Carrillo-Griego

Filing 920100520

Case: 09-50706

Document: 00511116939

Page: 1

Date Filed: 05/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-50706 Summary Calendar May 20, 2010 Lyle W. Cayce Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. PEDRO CARRILLO-GRIEGO, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:09-CR-955-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Pedro Carrillo-Griego appeals the 87-month sentence imposed in connection with his guilty-plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. Carrillo-Griego argues that his sentence is greater than

necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and that he should have been sentenced below the guidelines range. He contends that his Texas robbery conviction was double counted and argues that his cultural ties to this country and his motive for reentry support a sentence below the guidelines
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50706

Document: 00511116939 Page: 2 No. 09-50706

Date Filed: 05/20/2010

range. Carrillo-Griego cites Kimbrough v. United States, 522 U.S. 85 (2007), and argues that this court should not accord his sentence a presumption of reasonableness because the illegal reentry guideline is not supported by empirical data. In reviewing a sentence, we normally "consider[] the `substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.'" United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). However, Carrillo-Griego did not object in the district court to the reasonableness of his sentence, so our review is for plain error. See United States v. Anderson, 559 F.3d 348, 358 (5th Cir.), cert. denied, 129 S. Ct. 2814 (2009). Carrillo-Griego acknowledges that his empirical data argument is foreclosed by this court's precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Carrillo-Griego raises the issue to preserve it for further review. We have also previously rejected Carrillo-Griego's argument that the double counting of a defendant's criminal history necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31. Carrillo-Griego's assertions regarding his personal history and

characteristics and his motive for reentering the United States are insufficient to rebut the presumption of reasonableness. See United States v.

Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Carrillo-Griego has not demonstrated that the district court's imposition of a sentence at the top of the guidelines range was plainly erroneous. The district court's judgment is AFFIRMED.

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