USA v. Belmin Portillo

Filing

UNPUBLISHED OPINION FILED. [10-10005 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/16/2010 for Appellant Belmin Rivas Portillo [10-10005]

USA v. Belmin Portillo ase: 10-10005 C

Document: 00511275570 Page: 1 Date Filed: 10/26/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10005 S u m m a r y Calendar October 26, 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. B E L M I N RIVAS PORTILLO, also known as Belmin Oswaldo Rivas, 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 Northern District of Texas U S D C No. 3:09-CV-219-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges P E R CURIAM:* B e lm in Rivas Portillo pleaded guilty of illegal reentry following removal a n d was sentenced to a 15-month term of imprisonment and to a one-year period o f supervised release. Portillo now appeals his sentence, which was at the top o f the range recommended by the Sentencing Guidelines. The district court sentenced Portillo within a properly calculated guideline r a n g e , considered the factors enumerated in 18 U.S.C. § 3553(a), and adequately e x p la in e d the reasons for its chosen sentence, so Portillo's sentence enjoys a
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10005 Document: 00511275570 Page: 2 Date Filed: 10/26/2010 No. 10-10005 p r e s u m p t io n of reasonableness. See, e.g., Gall v. United States, 552 U.S. 38, 51 (2 0 0 7 ); United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). Portillo can r e b u t that presumption only by making "a showing that the sentence does not a c c o u n t for a factor that should receive significant weight, [] gives significant w e ig h t to an irrelevant or improper factor, or [] represents a clear error of ju d g m e n t in balancing sentencing factors." United States v. Cooks, 589 F.3d 173, 1 8 6 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010). Making such a showing is no easy feat: "It will be the rare sentence indeed that was required under the G u id e lin e s before Booker but [is] forbidden afterward, when discretion has gone u p rather than down." United States v. Gama-Gonzalez, 469 F.3d 1109, 1110 (7th C ir . 2006) (Easterbrook, J.). Portillo first argues that the district court imposed his sentence in a m a n n e r that "contradicts Gall's directive to treat each defendant as a unique in d iv id u a l, rather than a mathematical construct." Nothing in the record

s u p p o r t s Portillo's contention that the district court treated him as a m a t h e m a t ic a l construct. Gall forbids a court of appeals from using a "rigid m a t h e m a t ic a l formula" to evaluate a non-Guidelines sentence, see 552 U.S. at 4 7 , or requiring such a sentence to be "supported by a justification that is p r o p o r t io n a l to the extent of the difference between the advisory range and the s e n te n c e imposed," id. at 45 (citation and internal quotation marks omitted). The district court did not calculate Portillo's sentence in a manner that ran afoul o f the Supreme Court's teachings in Gall. Portillo next contends that the district court erred in considering his close t ie s to the United States as an aggravating factor. However, it is not apparent t h a t the district court regarded Portillo's close ties to this country as an a g g r a v a t in g sentencing factor. The district court concluded that "a sentence at t h e higher of the Guidelines is appropriate essentially for the reasons stated by t h e government." The government's stated reasons were Portillo's criminal h is t o r y , demonstrated lack of respect for the law, and membership in a gang. 2

Case: 10-10005 Document: 00511275570 Page: 3 Date Filed: 10/26/2010 No. 10-10005 T h e district court only discussed Portillo's close ties to the United States in r e s p o n s e to a suggestion from defense counsel that those ties weighed in favor o f a lesser sentence. "While cultural assimilation may be considered as a

m it ig a t in g factor, there is no requirement that a sentencing court must accord it dispositive weight." United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th C ir .) (per curiam) (internal citation omitted), cert. denied, 129 S. Ct. 625 (2008). Because Portillo has failed to make a showing that the district court gave " s ig n ific a n t weight to an irrelevant or improper factor," see Cooks, 589 F.3d at 1 8 6 (emphasis added), his sentence is: AFFIRMED.

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