USA v. Alfredo Ruiz-Cruz

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UNPUBLISHED OPINION FILED. [09-51066 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 10/08/2010 for Appellant Alfredo Ruiz-Cruz [09-51066]

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USA v. Alfredo Ruiz-Cruz Doc. 0 Case: 09-51066 Document: 00511236766 Page: 1 Date Filed: 09/17/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-51066 S u m m a r y Calendar September 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. A L F R E D O RUIZ-CRUZ, 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-2008-1 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. PER CURIAM:* A lfred o Ruiz-Cruz (Ruiz) appeals the sentence imposed following his guilty p le a conviction for illegal reentry of a previously deported alien, arguing that his s e n te n c e is greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). Ruiz argues that his within­guidelines sentence should not be p r e s u m e d reasonable because U.S.S.G. § 2L1.2 is not empirically based and thus is flawed under Kimbrough v. United States, 552 U.S. 85, 109-10 (2007). He a r g u e s that his sentence is greater than necessary to meet the sentencing goals 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-51066 Document: 00511236766 Page: 2 No. 09-51066 Date Filed: 09/17/2010 o f § 3553(a) because the Sentencing Guidelines accounted for a prior conviction b o th to increase his offense level and to calculate his criminal history score. Ruiz fu r t h e r contends that the guidelines range overstated the seriousness of his ille g a l reentry offense and that the guidelines range did not properly account for h is personal history and characteristics, including his motive for reentering. I n United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 1 3 0 S. Ct. 378 (2009), we rejected the same empirical data argument. See also U n ite d States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. d e n ie d , 130 S. Ct. 192 (2009). We also held that there was no impermissible d o u b le counting in the guidelines calculations that rendered the sentence u n r e a s o n a b le . See Duarte, 569 F.3d at 529-31; see also U.S.S.G. § 2L1.2 cmt. n.6. R u iz 's arguments concerning the district court's balancing of the § 3553(a) fa c t o r s amount to a disagreement with the district court's weighing of these fa c t o r s and the appropriateness of his within­guidelines sentence. This d is a g r e e m e n t does not suffice to show error in connection with his sentence. See U n ite d States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S . Ct. 624 (2008). Ruiz has not rebutted the presumption of reasonableness that a t t a c h e s to his within­guidelines sentence, and he has not shown that his s e n te n c e was unreasonable. See United States v. Armstrong, 550 F.3d 382, 4050 6 (5th Cir. 2008), cert. denied, 130 S. Ct. 54 (2009), overruled on other grounds b y United States v. Balleza, No. 09-10131, slip op. at 1 n.1 (5th Cir. July 27, 2 0 1 0 ) (per curiam); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). Accordingly, the judgment of the district court is AFFIRMED. 2

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