USA v. Jose Aristondo-Magana

Filing

Case: 09-50967

Document: 00511201144

Page: 1

Date Filed: 08/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50967 S u m m a r y Calendar August 11, 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 O S E ARISTONDO-MAGANA, 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-317-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* J o s e Aristondo-Magana (Aristondo) pleaded guilty to illegal reentry, in v io la t io n of 8 U.S.C. § 1326. The district court sentenced Aristondo to 54 months o f imprisonment, which was within the guidelines imprisonment range of 46 to 5 7 months. Aristondo now appeals, arguing that his sentence, which includes a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) (2008) because he was p r e v io u sly deported following a crime of violence conviction, is unreasonably long a n d greater than necessary to satisfy the goals of 18 U.S.C. § 3553(a). He also
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50967

Document: 00511201144 Page: 2 No. 09-50967

Date Filed: 08/11/2010

a r g u e s that the Guidelines that govern illegal reentry offenses lack an empirical fo u n d a t io n and thus deprive his sentence of a presumption of reasonableness on a p p e a l. I n Aristondo's case, the district court made an individualized sentencing d e c is io n based on the facts of the case in light of the factors set out in § 3553(a). See Gall v. United States, 128 S. Ct. 586, 596 (2007). The district court's

c o n c lu s io n that a within-guidelines sentence is appropriate is entitled to d e fe r e n c e , and we presume that it is reasonable. Id. at 597; United States v. N e w s o n , 515 F.3d 374, 379 (5th Cir. 2008). The district court was in a superior p o s it io n to find facts and assess their import under § 3553(a), Gall, 552 U.S. at 5 9 7 -9 8 , and we see no reason to disturb the district court's discretionary decision t o impose a sentence within the guidelines range. Furthermore, as Aristondo c o n c e d e s , his argument that the appellate presumption of reasonableness is in a p p lic a b le due to the lack of an empirical basis in the Guidelines governing ille g a l reentry offenses is foreclosed. 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 ). A F F IR M E D .

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