USA v. Julian Rodriguez-Alvarado

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USA v. Julian Rodriguez-Alvarado

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Case: 09-50927

Document: 00511192633

Page: 1

Date Filed: 08/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50927 S u m m a r y Calendar August 3, 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. J U L I A N RODRIGUEZ-ALVARADO, 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-1284-1

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* J u lia n Rodriguez-Alvarado appeals the 96-month sentence imposed in c o n n e c t io n with his guilty-plea conviction for illegal reentry in violation of 8 U . S .C . § 1326. Rodriguez-Alvarado argues that his sentence is greater than n e c e s s a r y to meet the sentencing goals of 18 U.S.C. § 3553(a)(2) and that he s h o u ld have been sentenced below the guidelines range. He contends that his T e x a s robbery conviction was double counted and argues that his cultural ties t o this country and his motive for reentry support a sentence below the
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50927

Document: 00511192633 Page: 2 No. 09-50927

Date Filed: 08/03/2010

g u id e lin e s range. Rodriguez-Alvarado cites Kimbrough v. United States, 522 U .S . 85 (2007), and argues that this court should not accord his withing u id e lin e s sentence a presumption of reasonableness because the illegal reentry g u id e lin e is not supported by empirical data. W e typically review sentences for reasonableness by engaging in a b ifu r c a t e d review. See Gall v. United States, 552 U.S. 38, 51 (2007); United S ta te s v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). RodriguezA lv a r a d o challenges only the substantive reasonableness of his sentence. We c o n s id e r the "substantive reasonableness of the sentence imposed under an a b u s e -o f-d is c r e t io n standard." Gall, 552 U.S. at 51. R o d r ig u e z -A lv a r a d o acknowledges that his empirical data argument is fo r e c lo s e d by this court's precedent. See United States v. Duarte, 569 F.3d 528, 5 2 9 -3 1 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v. M o n d r a g o n -S a n tia g o , 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2 0 0 9 ). Rodriguez-Alvarado similarly notes this court's rejection of his fast-track d is p a r it y argument. See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th C ir . 2008). Rodriguez-Alvarado raises these issues to preserve them for further r e v ie w . W e have also previously rejected the argument that the double counting o f a defendant's criminal history necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31. Rodriguez-Alvarado's assertions regarding his p e r s o n a l history and characteristics and his motive for reentering the United S t a te s are insufficient to rebut the presumption of reasonableness. See

G o m e z -H e r r e r a , 523 F.3d at565-66. Rodriguez-Alvarado has not demonstrated t h a t the district court's imposition of a sentence at the top of the guidelines r a n g e was an abuse of discretion. T h e judgment of the district court is AFFIRMED.

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