USA v. Kuitlahua Garcia-Herrera

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USA v. Kuitlahua Garcia-Herrera

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Case: 09-51020

Document: 00511205716

Page: 1

Date Filed: 08/17/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51020 C o n fe r e n c e Calendar August 17, 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. K U I T L A H U A GARCIA-HERRERA, also known as Jesus Garcia-Herrera, 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-1576-1

B e fo r e DAVIS, SMITH, and WIENER, Circuit Judges. P E R CURIAM:* K u itla h u a Garcia-Herrera appeals the 46-month sentence imposed fo llo w in g his guilty plea conviction for illegal reentry following deportation. Garcia-Herrera contends that the within-guidelines sentence was greater than n e c e s s a r y to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was t h e r e fo r e substantively unreasonable. He specifically argues U.S.S.G. § 2L1.2 w a s established in a problematic manner and effectively double-counts his c r im in a l history.
*

He also contends that his illegal reentry offense merely

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Dockets.Justia.com

Case: 09-51020

Document: 00511205716 Page: 2 No. 09-51020

Date Filed: 08/17/2010

c o n s t it u t e d international trespass and that the guidelines range failed to reflect h is personal history and characteristics, including his benign motive for r e e n te r in g the United States. Garcia-Herrera further asserts that his

s e n te n c in g range was unreasonable because the district court did not consider t h e unwarranted sentencing disparity between defendants sentenced in the W e s t e r n District of Texas, which does not have a fast-track program, and d e fe n d a n t s sentenced in districts that do have such a program T h is court reviews the sentence for reasonableness, under an abuse-ofd is c r e t io n standard. Gall v. United States, 552 U.S. 38, 51 (2007). Where, as in t h is case, the district court imposes a sentence within a properly calculated g u id e lin e s range, the sentence is entitled to a rebuttable presumption of r e a s o n a b le n e s s . See United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008). Garcia-Herrera's contention that § 2L1.2 is not supported by empirical d a t a and effectively double counts a defendant's criminal history has been r e je c t e d by this court. See United States v. Duarte, 569 F.3d 528, 529-31 (5th C ir .), cert. denied, 130 S. Ct. 378 (2009). This court also has determined that the " in te r n a t io n a l trespass" argument raised by Garcia-Herrera does not justify d is t u r b in g an otherwise presumptively reasonable sentence. See United States v . Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Furthermore, as GarciaH e r r e r a concedes, we have held that the disparity between districts with fa s t -t r a c k programs and districts without them is not unwarranted. See United S ta te s v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008). T h e district court made an individualized sentencing decision based on the fa c t s of the case in light of the factors set out in § 3553(a). See Gall, 552 U.S. at 4 9 -5 0 . The district court's conclusion that a within-guidelines sentence is

a p p r o p r ia te is entitled to deference, and we presume that it is reasonable. Id. a t 51-52; Newson, 515 F.3d at 379. We see no reason to disturb the district c o u r t's discretionary decision to impose a sentence within the guidelines range. A F F IR M E D . 2