USA v. Erasmo Contreras-Aguinaga


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USA v. Erasmo Contreras-Aguinaga Doc. 0 Case: 09-50949 Document: 00511211868 Page: 1 Date Filed: 08/23/2010 REVISED August 23, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT N o . 09-50949 S u m m a r y Calendar United States Court of Appeals Fifth Circuit FILED August 20, 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 R A S M O CONTRERAS-AGUINAGA, 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-297-1 B e fo r e KING, HIGGINBOTHAM, and ELROD, Circuit Judges. P E R CURIAM:* E ra sm o Contreras-Aguinaga appeals the 46-month sentence imposed after h is guilty plea conviction for illegal reentry following deportation in violation of 8 U.S.C. 1326. He contends that the sentence was greater than necessary to s a t is fy the sentencing goals set forth in 18 U.S.C. 3553(a) and was therefore s u b s t a n t iv ely unreasonable. Contreras-Aguinaga argues that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-50949 Document: 00511211868 Page: 2 No. 09-50949 Date Filed: 08/23/2010 o ffe n s e was not a crime of violence and was "at bottom, an international t r e s p a s s ." Contreras-Aguinaga also maintains that his sentence fails to reflect h is personal history and characteristics, including his motive for reentering the U n ite d States. T h is court reviews the "substantive reasonableness of the sentence im p o s e d under an abuse-of-discretion standard." Gall v. United States, 552 U.S. 3 8 , 51 (2007). Contreras-Aguinaga's 46-month sentence, within the guidelines r a n g e , is presumed reasonable on appeal. See United States v. Duarte, 569 F.3d 5 2 8 , 530 (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 ). T h e district court considered Contreras-Aguinaga's request for a d o w n w a r d variance, and it ultimately determined that a sentence at the top of t h e guidelines range was appropriate based on the circumstances of the case and t h e 3553(a) factors. Contreras-Aguinaga essentially seeks to have his sentence v a c a t e d based on a reweighing of the 3553(a) factors by this court. However, t h e fact that we "might reasonably have concluded that a different sentence was a p p r o p r ia te is insufficient to justify reversal of the district court." Gall, 552 U.S. a t 51. We have also rejected Contreras-Aguinaga's "international trespass" a r g u m e n t . See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). The district court did not abuse its discretion in imposing the 46-month w it h in -g u id e lin e s sentence. See id. We affirm. A F F IR M E D . 2

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