USA v. Porfirio Garcia-Baraona

Filing 920101217

Opinion

Case: 10-40045 Document: 00511323777 Page: 1 Date Filed: 12/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40045 S u m m a r y Calendar December 16, 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. P O R F I R I O GARCIA-BARAONA, 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. 5:09-CR-1878-1

B e fo r e KING, DeMOSS, and DENNIS, Circuit Judges. P E R CURIAM:* P o r fir io Garcia-Baraona (Garcia) appeals the 63-month sentence imposed fo llo w in g his guilty plea conviction for illegal reentry after a previous d e p o r t a t i o n . He argues that his within-guidelines sentence is substantively u n r e a s o n a b le . As a threshold matter, Garcia argues that a presumption of

r e a s o n a b le n e s s should not apply to his within-guidelines sentence on appellate r e v ie w because the Guideline upon which it is based, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Case: 10-40045 Document: 00511323777 Page: 2 Date Filed: 12/16/2010 No. 10-40045 p e n o lo g ic a lly flawed and not the result of empirical evidence or study. As Garcia a c k n o w le d g e s , this argument is foreclosed. See United States v.

M o n d r a g o n -S a n tia g o , 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2 0 0 9 ); see also United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. d e n ie d , 130 S. Ct. 378 (2009). Citing cases from the Ninth and Tenth Circuits, Garcia asserts that, even if the presumption of reasonableness applies, it is rebutted by the facts and c ir c u m s t a n c e s of this case. He emphasizes the staleness of his 1999 conviction, w h ic h occurred approximately 11 years prior to the present offense and formed t h e basis of his 16-level enhancement under § 2L1.2. During that 11-year in t e r v a l, however, Garcia was imprisoned for about six to seven years and then c o m m it t e d the instant illegal reentry offense while on probation for his 1999 c o n v ic tio n . The district court considered and rejected Garcia's arguments for a s e n te n c e below his advisory guidelines range. With reference to the sentencing fa c t o r s of 18 U.S.C. § 3553(a) and the arguments made during allocution, the c o u r t determined that a sentence at the bottom of Garcia's guidelines range was in d ic a te d . While Garcia provided mitigating evidence, he has not rebutted the p r e s u m p t io n of reasonableness attaching to his within-guidelines sentence. United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United S ta te s v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). The district court did not a b u s e its discretion by ordering a 63-month sentence. Gall v. United States, 552 U .S . 38, 51 (2007). The district court's judgment is AFFIRMED.

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