USA v. Francisco Delgado-Garcia


UNPUBLISHED OPINION FILED. [09-51049 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/05/2010 for Appellant Francisco Delgado-Garcia [09-51049]

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USA v. Francisco Delgado-Garcia Doc. 0 Case: 09-51049 Document: 00511264369 Page: 1 Date Filed: 10/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-51049 S u m m a r y Calendar October 15, 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 R A N C I S C O DELGADO-GARCIA, 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-2013-1 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* F r a n c is c o Delgado-Garcia appeals the 46-month sentence imposed fo llo w in g his guilty plea conviction for illegal reentry following deportation in v io la t io n of 8 U.S.C. 1326. He contends that the sentence is substantively u n r e a s o n a b le because it was greater than necessary to accomplish the s e n te n c in g goals set forth in 18 U.S.C. 3553(a). He argues that the guidelines r a n g e was too severe because U.S.S.G. 2L1.2 double counts a defendant's c r im in a l record. * He also argues that the guidelines range overstated the 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-51049 Document: 00511264369 Page: 2 No. 09-51049 Date Filed: 10/15/2010 s e r io u s n e s s of his non-violent reentry offense, which amounted to a mere " in te r n a t io n a l trespass." Finally, Delgado-Garcia argues that the guidelines r a n g e failed to account for his motive for reentering the United States; s p e c ific a lly , to be with and financially support his wife and three United States c it iz e n children, all of whom were having difficulty adjusting to his absence. W e review the "substantive reasonableness of the sentence imposed under a n abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 51 (2007). "A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable." United States v. Campos-Maldonado, 531 F.3d 3 3 7 , 338 (5th Cir. 2008). T h e district court considered Delgado-Garcia's request for a downward v a r ia n c e , and it ultimately determined that a sentence at the bottom of the a p p lic a b le guidelines range was appropriate based on the circumstances of the c a s e and the 3553(a) factors. Specifically, the district court noted that D e lg a d o -G a r c ia had been sentenced to 41 months of imprisonment on his prior ille g a l reentry conviction. W e have rejected the argument that using a prior conviction to increase t h e offense level and calculate the criminal history category renders a w it h in -g u id elin e s sentence unreasonable. United States v. Duarte, 569 F.3d 528, 5 2 9 -3 1 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). Further, Delgado-Garcia's a s s e r t io n s that the non-violent nature of his offense and his motive for r e e n te r in g the United States justified a lower sentence are insufficient to rebut t h e presumption of reasonableness. See United States v. Gomez-Herrera, 523 F .3 d 554, 565-66 (5th Cir. 2008). Therefore, Delgado-Garcia has failed to show t h a t his within-guidelines sentence is substantively unreasonable. See id. Accordingly, the district court's judgment is AFFIRMED. 2

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