USA v. Daniel Aguilar-Moreno

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USA v. Daniel Aguilar-Moreno

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Case: 09-50816

Document: 00511183926

Page: 1

Date Filed: 07/23/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50816 S u m m a r y Calendar July 23, 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 v. D A N I E L AGUILAR-MORENO, 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. 2:08-CR-1036-1

B e fo r e KING, STEWART, and HAYNES, Circuit Juges. P E R CURIAM:* D a n ie l Aguilar-Moreno appeals the 77-month term of imprisonment im p o s e d for his guilty plea conviction of violating 8 U.S.C. § 1326(a) and (b)(2) b y being found in the United States without permission, following removal. He a r g u e s that his sentence, which fell within his advisory sentencing guidelines r a n g e , is substantively unreasonable because it was greater than necessary to a c h ie v e the sentencing goals set forth in 18 U.S.C. § 3553(a). Aguilar-Moreno c o n t e n d s that his sentence overstates the seriousness of his illegal reentry
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50816

Document: 00511183926 Page: 2 No. 09-50816

Date Filed: 07/23/2010

offense and does not properly account for his personal history and c h a r a c t e r is t ic s , including his motive for reentering the United States. C it in g Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), AguilarM o r e n o contends that his sentence should not be accorded an appellate p r e s u m p t io n of reasonableness because U.S.S.G. § 2L1.2, the Guideline a p p lic a b le to violations of § 1326, is not empirically based and double-counts a d e fe n d a n t 's criminal history. However, Aguilar-Moreno concedes that his

c h a lle n g e to the presumption of reasonableness is foreclosed by our 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 (5 t h Cir.), cert. denied, 130 S. Ct. 192 (2009); see also § 2L1.2, comment. (n.6). B e fo r e imposing Aguilar-Moreno's sentence, the district court judge c o n s id e r e d the advisory sentencing guidelines range, the information in AguilarM o r e n o 's presentence report, and the § 3553(a) factors. The judge also

c o n s id e r e d the arguments presented at sentencing and determined that a g u id e lin e sentence would be appropriate. Aguilar-Moreno's arguments do not e s t a b lis h that the district court abused its discretion in imposing that sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). He has not rebutted the p r e s u m p t io n of reasonableness that attaches to his within-guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). T h e judgment of the district court is AFFIRMED.

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