USA v. Alvaro Ayala


UNPUBLISHED OPINION FILED. [09-51018 Affirmed ] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010 for Appellant Alvaro Lopez Ayala [09-51018]

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USA v. Alvaro AyalaCase: 09-51018 Document: 00511274738 Page: 1 Date Filed: 10/26/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-51018 C o n fe r e n c e Calendar October 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. A L V A R O LOPEZ AYALA, 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. 1:09-CR-335-1 B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A lv a ro Lopez Ayala pleaded guilty to illegally reentering the United States fo llo w in g deportation and was sentenced to a 60-month term of imprisonment. S e e 8 U.S.C. 1326. Lopez Ayala contends that U.S.S.G. 2L1.2 improperly r e s u lt s in the use of his prior aggravated assault conviction to determine both h is offense level and his criminal history score, resulting in double counting. He c o n t e n d s further that the sentence imposed was greater than necessary in light o f the sentencing factors set forth in 18 U.S.C. 3553(a) and was therefore 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-51018 Document: 00511274738 Page: 2 Date Filed: 10/26/2010 No. 09-51018 u n r e a s o n a b le . He maintains that his offense was nothing more than an in t e r n a t io n a l trespass and that his sentence was too severe for the offense of c o n v ic t io n in light of his personal history and characteristics. Lopez Ayala also a r g u e s that the lack of an empirical basis for 2L1.2 precludes an appellate p r e s u m p t io n that his sentence is reasonable. This court reviews sentences for reasonableness in light of the factors set o u t in 3553(a). Gall v. United States, 552 U.S. 38, 46, 51 (2007). In conducting t h e reasonableness review, this court reviews the sentence for both procedural e r r o r and substantive reasonableness. Id. at 51. Because Lopez Ayala raises his double-counting claim, a procedural claim, fo r the first time on appeal, review is for plain error. See United States v. M o n d r a g o n -S a n tia g o , 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2 0 0 9 ); United States v. Klein, 543 F.3d 206, 213 (2008). We have previously r e je c t e d the argument that the double counting of a defendant's criminal history n e c e s s a r ily renders a sentence unreasonable. See United States v. Duarte, 569 F .3 d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); see also U.S.S.G. 2L1.2, comment. (n.6). Thus, the district court did not commit procedural e r r o r , plain or otherwise, when it used Lopez Ayala's aggravated assault c o n v ic t io n to determine both his offense level and his criminal history score. T o the extent that Lopez Ayala preserved his substantive reasonableness a r g u m e n t s , review of the district court's application of the Guidelines is de novo a n d its findings of fact is for clear error. See United States v. Cisneros-Gutierrez, 5 1 7 F.3d 751, 764 (5th Cir. 2008). Otherwise, review is for plain error. See Mondragon-Santiago, 564 F.3d at 361. Lopez Ayala's arguments fail under both s t a n d a r d s . The district court considered Lopez Ayala's arguments for a belowg u id e lin e s sentence but determined that a sentence at the low end of that range w a s appropriate. Because his sentence is "within a properly calculated G u id e lin e range," it carries a presumption of reasonableness. Rita v. United S ta te s , 551 U.S. 338, 351 (2007). Lopez Ayala advances no persuasive reason for 2 Case: 09-51018 Document: 00511274738 Page: 3 Date Filed: 10/26/2010 No. 09-51018 t h is court to question the application of the presumption or to disturb the district c o u r t's choice of sentence. See Gall, 552 U.S. at 51 (stating that "the fact that t h e appellate court might reasonably [conclude] that a different sentence [is] a p p r o p r ia te is insufficient to justify reversal of the district court"); see also U n ite d States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (implicitly r e je c t in g the contention that the defendant's illegal reentry was "`at bottom'" m e r e ly "an international trespass"). F in a lly , Lopez Ayala concedes that his argument that the lack of an e m p ir ic a l basis for 2L1.2 precludes an appellate presumption that his sentence is reasonable is foreclosed by this court's decision in Mondragon-Santiago, 564 F .3 d at 366-67. He raises the claim, however, to preserve it for future review. A F F IR M E D . 3

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