USA v. Eduardo Olmedo

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USA v. Eduardo Olmedo

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Case: 09-50865

Document: 00511214028

Page: 1

Date Filed: 08/25/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50865 S u m m a r y Calendar August 25, 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. E D U A R D O OLMEDO, 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. 3:08-CR-3386-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Eduardo Olmedo appeals the sentence imposed f o l l o w in g his guilty plea conviction for being unlawfully present in the United S t a te s following removal. The district court sentenced Olmedo to 70 months imprisonment and three years supervised release, a sentence at the low end of t h e guidelines range. O lm e d o contends that the sentence was unreasonable because it was g r e a t e r than necessary to meet the goals of 18 U.S.C. § 3553(a). He maintains
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50865

Document: 00511214028 Page: 2 No. 09-50865

Date Filed: 08/25/2010

t h a t the Guideline on which his sentence was based, U.S.S.G. § 2L1.2, was not b a s e d on empirical data, making the guidelines range excessive even in a normal c a s e . He claims that the guidelines sentence range was excessive because his p r io r federal drug conviction both increased his offense level by 16 and resulted in six criminal history points. Olmedo also asserts that the sentence was too s e v e r e because his offense amounted to an international trespassing offense. He a r g u e s that the sentence was excessive because he had lived in the United States s in c e he was five years old and because the district court based the sentence on it s view that it had imposed a lenient sentence for Olmedo's prior drug c o n v ic tio n . T h e district court considered and rejected Olmedo's arguments for a s e n te n c e below guidelines range. With explicit reference to the § 3553(a) factors o f deterrence and promoting the respect of law, it determined that a sentence w it h in the guidelines range was appropriate. Although § 2L1.2 may not be b a s e d on empirical data, the presumption of reasonableness still applies to s e n te n c e s within a guidelines range properly calculated under § 2L1.2. See U n ite d States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. d e n ie d , 130 S. Ct. 192 (2009). Both the international trespass and the double c o u n t in g of prior convictions contentions that Olmedo raises have been raised p r e v io u s ly in this court without success. See United States v. Aguirre-Villa, 460 F .3 d 681, 683 (5th Cir. 2006); United States v. Duarte, 569 F.3d 528, 529-31 (5th C ir .), cert. denied, 130 S. Ct. 378 (2009). Even though the district court

c o n s id e r e d that it had given Olmedo a lenient sentence for his prior drug c o n v ic t io n , Olmedo has not shown that this was improper. See United States v. L e e , 358 F.3d 315, 328-29 (5th Cir. 2004). As Olmedo was sentenced within the g u id e l i n e s range, the sentence is entitled to a presumption of reasonableness, a n d Olmedo has not shown sufficient reason to overcome that presumption. See U n ite d States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). A F F IR M E D . 2