USA v. Carlos Gomez-Murillo

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USA v. Carlos Gomez-Murillo

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Case: 09-51171

Document: 00511216208

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51171 S u m m a r y Calendar August 26, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. C A R L O S RENE GOMEZ-MURILLO, 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. 2:09-CR-744-1

B e fo r e KING, DeMOSS, and CLEMENT, Circuit Judges. P E R CURIAM:* C a r lo s Rene Gomez-Murillo (Gomez) pleaded guilty to illegal reentry after d e p o r t a t io n and now appeals his 30-month within-guidelines range sentence of i m p r is o n m e n t. Gomez argues that the sentence imposed is substantively

u n r e a s o n a b le for several reasons. B e c a u s e Gomez did not object to the reasonableness of his sentence, we r e v ie w for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th C ir . 2007). We have rejected Gomez's argument that by effectively "doublePursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-51171

Document: 00511216208 Page: 2 No. 09-51171

Date Filed: 08/26/2010

c o u n t in g " the criminal history of illegal immigrants the applicable guidelines r a n g e overstates the risk of recidivism and the seriousness of the offense. See U n ite d States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 3 7 8 (2009). Gomez concedes that his contention that his within-guidelines range sen ten c e should not be afforded a presumption of reasonableness because United S t a te s Sentencing Guideline § 2L1.2 is not supported by an empirical basis is f o r e c lo s e d . United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th C ir .), cert. denied, 130 S.Ct. 192 (2009). Gomez also asserts that his sentence is substantively unreasonable b e c a u s e it does not properly account for his mitigating history and c h a r a c t e r is t ic s , including his motives for returning to the country. However, the d is t r ic t court concluded that the sentence was appropriate in light of all of the 1 8 U.S.C. § 3553(a) factors, and this court must give deference to that c o n c lu s io n . See Gall v. United States, 552 U.S. 38, 51 (2007). Gomez fails to r e b u t the presumption of reasonableness afforded his within-guidelines s e n te n c e , see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), and has n o t demonstrated plain error. See Peltier, 505 F.3d at 391-92. Accordingly, the ju d g m e n t of the district court is AFFIRMED.

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