USA v. Carlos Vasquez-Diaz

Filing

UNPUBLISHED OPINION FILED. [10-20101 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 10/28/2010 for Appellant Carlos Vasquez-Diaz [10-20101]

USA v. Carlos Vasquez-Diaz

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Case: 10-20101

Document: 00511257124

Page: 1

Date Filed: 10/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20101 S u m m a r y Calendar October 7, 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. C A R L O S VASQUEZ-DIAZ, also known as Carlos Diaz Vasquez, also known as C a r lo s Vasquez Diaz, also known as Carlos Vasquez, 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 Southern District of Texas U S D C No. 4:09-CR-484-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* C a r lo s Vasquez-Diaz (Vasquez) appeals the 57-month within-guidelines s e n te n c e imposed following his guilty plea to illegal reentry following d e p o r t a t io n in violation of 8 U.S.C. § 1326. Vasquez argues that his sentence is g r e a t e r than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and t h a t he should have been sentenced below the guidelines range. He contends t h a t the guidelines sentencing range was too severe because U.S.S.G. § 2L1.2 is

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20101

Document: 00511257124 Page: 2 No. 10-20101

Date Filed: 10/07/2010

n o t empirically based and resulted in the double counting of his prior aggravated a s s a u lt conviction. He also argues that the 16-level sentencing enhancement he r e c e iv e d as a result of that prior aggravated assault conviction overstated the g r a v it y of the incident. Vasquez's empirical data argument is foreclosed by this court's precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. C t . 378 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th C ir .), cert. denied, 130 S. Ct. 192 (2009). In addition, we have previously rejected t h e argument that the double counting of a defendant's criminal history n e c e s s a r ily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31; s e e also U.S.S.G. § 2L1.2, comment. (n.6). V a s q u e z 's assertions regarding the seriousness of his prior aggravated a s s a u lt offense are insufficient to rebut the presumption of reasonableness. See U n ite d States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S . Ct. 624 (2008); United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1 9 9 6 ). Accordingly, the district court's judgment is AFFIRMED.

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