USA v. Enedino Vasquez-Martinez

Filing

UNPUBLISHED OPINION FILED. [10-40044 Affirmed ] Judge: EHJ , Judge: JES , Judge: EBC Mandate pull date is 11/17/2010 for Appellant Enedino Vasquez-Martinez [10-40044]

USA v. Enedino Vasquez-Martinez Case: 10-40044

Document: 00511276075 Page: 1 Date Filed: 10/27/2010

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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 . 10-40044 S u m m a r y Calendar October 27, 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 N E D I N O VASQUEZ-MARTINEZ, 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. 7:09-CR-1386-1

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* E n e d in o Vasquez-Martinez (Vasquez) appeals his 57-month sentence of im p r is o n m e n t imposed following his guilty plea conviction for being found u n la w fu lly present in the United States following deportation. Vasquez argues t h a t the sentence is procedurally unreasonable because the district court failed t o give an adequate explanation for the sentence given and did not address his n o n fr iv o lo u s claim that the 16-level enhancement of his offense level was e x c e s s iv e in light of the nature of his prior conviction for domestic violence.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40044 Document: 00511276075 Page: 2 Date Filed: 10/27/2010 No. 10-40044 B e c a u s e Vasquez objected in the district court to the sufficiency of the d is t r ic t court's reasons, he preserved the error for appeal. See United States v. M o n d r a g o n -S a n tia g o , 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2 0 0 9 ). The district court is not required to give a specific explanation for r e je c t in g an argument seeking a lower sentence. Rita v. United States, 551 U.S. 3 3 8 , 357 (2007). The sentencing court need only "satisfy the appellate court that h e has considered the parties' arguments and has a reasoned basis for exercising h is own legal decisionmaking authority." Id. at 356. The district court agreed w it h Vasquez's argument concerning the overrepresentation of his criminal h is t o r y and, after considering the seriousness of his prior conduct and likely r e c id iv is m , it departed downward by modifying Vasquez's criminal history c a t e g o r y to a less serious category. Id. In adopting the findings in the

p r e s e n t e n c e report, the district court, by implication, rejected Vasquez's o b je c t io n to the 16-level enhancement based on his prior conviction. The district c o u r t's statements, reflecting that it had considered the parties' arguments and t h e § 3553(a) factors in imposing sentence, were sufficient to satisfy this court t h a t there was a reasonable basis for the sentence. See United States v.

R o d r ig u e z , 523 F.3d 519, 525-26 (5th Cir. 2008). Thus, there was no significant p r o c e d u r a l error with respect to the sentence. 5 5 2 U.S. 39, 51 (2007). V a s q u e z further argues that his sentence is substantively unreasonable b e c a u s e it was greater than necessary to effectuate the purposes of sentencing a n d that a sentence can be unreasonable even if it is a below-guidelines s e n te n c e . He complains that his sentence for the instant illegal reentry offense w a s more than twice the sentence that he received for his prior conviction for d o m e s t ic abuse. He repeats his argument that the 16-level enhancement often r e s u lt s in the overpunishment of defendants. V a s q u e z also objected to the substantive reasonableness of the sentence. T h e substantive reasonableness of a sentence, including one resulting from a 2 See Gall v. United States,

Case: 10-40044 Document: 00511276075 Page: 3 Date Filed: 10/27/2010 No. 10-40044 d o w n w a r d departure, is reviewed for an abuse of discretion. Gall, 552 U.S. at 5 1 ; United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008). The district c o u r t may consider the policy decisions behind a Guideline as part of its § 3553(a) analysis, but it has the discretion to reject policy based arguments. Mondragon-Santiago, 564 F.3d at 366. Vasquez's sentence was below the initial s e n te n c in g guidelines range and at the bottom of the range defined by the d o w n w a r d departure. The district court indicated that it had considered the o v e r r e p r e s e n t a t io n of the seriousness of his past criminal conduct. Vasquez has n o t shown that the sentence was greater than necessary or made any other a r g u m e n t showing that the district court abused its discretion in imposing such s e n te n ce . Thus, Vasquez has not demonstrated that the sentence was

s u b s t a n t iv e ly unreasonable. T h e sentence is AFFIRMED.

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