USA v. Felipe Rubio-Munoz

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USA v. Felipe Rubio-Munoz

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Case: 09-50969

Document: 00511215732

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50969 S u m m a r y Calendar August 26, 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. F E L IP E RUBIO-MUNOZ, 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-510-1

B e fo r e REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges. P E R CURIAM:* F e lip e Rubio-Munoz challenges his 34-month sentence following his guilty p le a to illegally reentering the United States following deportation. RubioM u n o z concedes that precedent forecloses his argument that the lack of an e m p ir ic a l basis for U.S.S.G. § 2L1.2 precludes an appellate presumption that his s e n te n c e is reasonable. See United States v. Mondragon-Santiago, 564 F.3d 357, 3 6 6 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50969

Document: 00511215732 Page: 2 No. 09-50969

Date Filed: 08/26/2010

R u b io -M u n o z contends that his sentence is greater than necessary to meet t h e sentencing goals of 18 U.S.C. § 3553(a) because the Sentencing Guidelines a c c o u n t for a prior conviction both to increase his offense level and to calculate h is criminal history score. Rubio-Munoz avers further that the guidelines range o v e r s ta te d the seriousness of his offense because his conduct was not violent and t h a t the guidelines range did not properly account for his personal history and c h a r a c t e r is t ic s , including his motive for reentering. W e review a sentence for reasonableness. See Gall v. United States, 552 U .S . 38, 56 (2007). Because it is within the properly calculated guidelines range, R u b io -M u n o z 's sentence is entitled to a presumption of reasonableness. See Rita v . United States, 551 U.S. 338, 350-51 (2007); Mondragon-Santiago, 564 F.3d at 3 6 6 . Rubio-Munoz offers no good reason for us to disturb that presumption. See G a ll, 552 U.S. at 51; United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2 0 0 6 ). Moreover, this court has consistently rejected the argument that a

sen ten ce within a guidelines range calculated using the illegal-reentry Guideline is not 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); see also MondragonS a n tia g o , 564 F.3d at 366-67. A F F IR M E D .

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