USA v. Manuel Moreno

Filing

UNPUBLISHED OPINION FILED. [09-51027 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 10/25/2010 for Appellant Manuel Alberto Carillo Moreno [09-51027]

USA v. Manuel Moreno

Doc. 0

Case: 09-51027

Document: 00511252934

Page: 1

Date Filed: 10/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51027 S u m m a r y Calendar October 4, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. M A N U E L ALBERTO CARILLO MORENO, also known as Manuel Carrillo, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:08-CR-2374-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* M a n u e l Alberto Carillo Moreno (Carillo) appeals following his guilty-plea c o n v ic t io n for illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b). The d is tr ic t court imposed forty-six months of imprisonment and three years of s u p e r v is e d release. He argues the sentence was greater than necessary to meet t h e sentencing goals outlined in 18 U.S.C. § 3553(a). C a r i l lo has not shown that the forty-six-month term of imprisonment im p o s e d by the district court was unreasonable. Because the sentence was
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-51027

Document: 00511252934 Page: 2 No. 09-51027

Date Filed: 10/04/2010

w it h in the properly calculated guidelines range of forty-six to fifty-seven months o f imprisonment, it is entitled to a presumption of reasonableness. United States v . Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). The record

d e m o n stra tes that the district court properly made an individualized assessment t o determine whether a sentence within the guidelines range was sufficient but n o t greater than necessary to achieve the goals of Section 3553(a). See Rita v. U n ite d States, 551 U.S. 338, 347-48 (2007). Carillo has thus failed to rebut the p r e s u m p t io n of reasonableness that we apply to his within-guidelines sentence. See Campos-Maldonado, 531 F.3d at 338. C a r ill o raises two additional arguments, which he acknowledges are fo r e c lo s e d by our precedent, to preserve for further review. He argues that, in lig h t of Kimbrough v. United States, the presumption of reasonableness does not a p p ly to his within-guidelines sentence because the illegal reentry Guideline, U .S .S .G . § 2L1.2, lacks an empirical basis. 552 U.S. 85, 109-10 (2007). We have c o n s i s te n t ly rejected Carillo's argument, concluding that Kimbrough does not q u e s t io n the presumption of reasonableness and does not require district or a p p e lla te courts to independently analyze the empirical grounding behind each i n d i v i d u a l guideline. See United States v. Duarte, 569 F.3d 528, 530-31 (5th C ir .), cert. denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 5 6 4 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Carillo also a r g u e s the Guidelines produce unwarranted sentencing disparities between d e fe n d a n t s who can participate in a fast-track program and defendants who c a n n o t . We have held that "any sentencing disparity resulting from fast track d is p o s it io n is not unwarranted." United States v. Gomez-Herrera, 523 F.3d 554, 5 6 3 (5th Cir. 2008). T h e judgment of the district court is AFFIRMED.

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