USA v. Edin Aldana


UNPUBLISHED OPINION FILED. [09-51132 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 09/30/2010 for Appellant Edin Edgardo Aldana [09-51132]

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USA v. Edin Aldana Doc. 0 Case: 09-51132 Document: 00511228616 Page: 1 Date Filed: 09/09/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-51132 S u m m a r y Calendar September 9, 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. E D I N EDGARDO ALDANA, 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. 2:08-CR-821-1 B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* E d in Edgardo Aldana appeals his 51-month sentence imposed following h is guilty plea conviction for illegal reentry after deportation, in violation of 8 U .S .C . 1326. He argues that the presumption of reasonableness does not apply t o his within-guidelines sentence because the illegal reentry guideline, U.S.S.G. 2L1.2, is not supported by empirical data or national experience. Aldana also a r g u e s that the sentence is greater than necessary to meet the sentencing goals o u tlin e d in 18 U.S.C. 3553(a). * He contends that a sentence below 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-51132 Document: 00511228616 Page: 2 No. 09-51132 Date Filed: 09/09/2010 g u id e lin e s is sufficient because he reentered the United States only to find work in order to support his family; the use of his manslaughter conviction to calculate b o th his criminal history score and his offense level placed undue weight on his p r io r conviction; and there were mitigating circumstances surrounding his prior c o n v ic t io n for manslaughter because he shot the victim in self-defense. As Aldana concedes, his argument that the presumption of reasonableness does not apply because 2L1.2 is not empirically-based is foreclosed by United S ta te s v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2 0 0 9 ), and United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2 0 0 8 ). We have also previously rejected the argument that the double counting o f a defendant's criminal history necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31. The district court considered Aldana's request for leniency, but it u lt im a te ly determined that a 51-month sentence was appropriate. The district c o u r t did not unreasonably reject Aldana's argument that he shot the victim in s e lf-d e fe n s e because the plea colloquy showed that Aldana approached the p a s s e n g e r window of the car with a gun and fired across the passenger seat s t r ik in g the victim in the head and chest. Moreover, Aldana's assertion r e g a r d in g his motive for reentering the United States is insufficient to rebut the p r e s u m p t io n of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 5 5 4 , 565-66 (5th Cir. 2008). Aldana has not shown that his sentence was u n r e a s o n a b le , and he has not rebutted the presumption of reasonableness that a t t a c h e s to his within-guidelines sentence. See United States v. Cooks, 589 F.3d 1 7 3 , 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010). Accordingly, the ju d g m e n t of the district court is AFFIRMED. 2

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