USA v. Juan Moreno-Robles

Filing

UNPUBLISHED OPINION FILED. [09-50749 Affirmed] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 11/29/2010 for Appellant Juan Carlos Moreno-Robles [09-50749]

USA v. Juan Moreno-Robles Case: 09-50749

Document: 00511284562 Page: 1 Date Filed: 11/04/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50749 S u m m a r y Calendar November 4, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s J U A N CARLOS MORENO-ROBLES, 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-679-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

J u a n Carlos Moreno-Robles appeals the 70-month sentence imposed follo w in g his guilty plea conviction for illegal reentry after deportation, in violation
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-50749 Document: 00511284562 Page: 2 Date Filed: 11/04/2010 No. 09-50749 o f 8 U.S.C. § 1326. He argues that the presumption of reasonableness does not a p p ly to his within-guidelines sentence because the illegal reentry guideline, U .S .S .G . § 2L1.2, is not supported by empirical data. He also contends that the s e n te n c e is greater than necessary to meet the sentencing goals outlined in 18 U .S .C . § 3553(a). He urges that a lower sentence is sufficient because his life w a s threatened while living in Mexico, and he returned to the United States only pursuant to his family's request; he spent most of his life living in the United S t a te s ; and the guidelines effectively double-counted his prior conviction of imp o r t a t io n of marihuana by using it to calculate the criminal history score and to in c r e a s e the base offense level. As Moreno-Robles concedes, his empirical-data argument is foreclosed by U n ite d States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. den ie d , 130 S. Ct. 192 (2009). We have rejected the claim that the double counting o f criminal history necessarily renders a sentence unreasonable. See United S ta t e s v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2 0 0 9 ). The district court considered Moreno-Robles's request for leniency, but it u lt im a te ly determined that the sentence is appropriate. Moreno-Robles's argum e n ts regarding his upbringing in the United States and his motive for reent e r in g the United States are insufficient to rebut the presumption of reasonablen e s s . See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). He has not shown that the sentence is unreasonable and has not rebutted the p r e s u m p t io n of reasonableness that attaches to the within-guidelines sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S . Ct. 1930 (2010). Accordingly, the judgment is AFFIRMED.

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