USA v. Gilberto Espinoza-Moran

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USA v. Gilberto Espinoza-Moran

Doc. 0

Case: 09-50897

Document: 00511187221

Page: 1

Date Filed: 07/28/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50897 S u m m a r y Calendar July 28, 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. G I L B E R T O ESPINOZA-MORAN, also known as Gilberto Espinoza Moran, 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. 2:09-CR-65-1

B e fo r e REAVLEY, STEWART, and SOUTHWICK, Circuit Judges. P E R CURIAM:* G ilb e r t o Espinoza-Moran pleaded guilty without the benefit of a plea a g r e e m e n t to being unlawfully present in the United States following removal i n violation of 8 U.S.C. § 1326(a), (b). Although the applicable advisory

s e n te n c in g guidelines range was 37 to 46 months of imprisonment, the district c o u r t determined that a non-guidelines sentence was appropriate and sentenced E s p in o z a -M o r a n to 60 months of imprisonment. Espinoza-Moran argues on a p p e a l that his sentence is unreasonable.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50897

Document: 00511187221 Page: 2 No. 09-50897

Date Filed: 07/28/2010

F o llo w in g United States v. Booker, 543 U.S. 220 (2005), our review of s e n te n c e s is for reasonableness in light of the sentencing factors set forth in 18 U .S .C . § 3553(a). See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2 0 0 5 ). We first determine whether the district court committed procedural e r r o r . See Gall v. United States, 552 U.S. 38, 51 (2007). If there is no procedural e r r o r , we then "consider the substantive reasonableness of the sentence imposed u n d e r an abuse-of-discretion standard." Id. As Espinoza-Moran does not suggest that the sentencing court committed a n y procedural errors in calculating or explaining the reasons for his sentence, o u r review is confined to the substantive reasonableness of the sentence. See U n ite d States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008); Gall, 552 U.S. at 51. We find no merit in Espinoza-Moran's argument that the district court erred in fin d in g that the guidelines range did not adequately account for his criminal h is t o r y . See Brantley, 537 F.3d at 350. In light of the substantial criminal c o n d u c t not counted under the Sentencing Guidelines, Espinoza's 60-month s e n te n c e was within the discretion of the district court and was substantively r e a s o n a b le under 18 U.S.C. § 3553(a). See Brantley, 537 F.3d at 348-50; United S ta te s v. Jones, 444 F.3d 430, 433-34, 440-41 (5th Cir. 2006). A F F IR M E D .

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