USA v. Fabian Lechuga-Esparza

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UNPUBLISHED OPINION FILED. [10-40277 Affirmed ] Judge: PEH , Judge: FPB , Judge: JWE Mandate pull date is 10/25/2010 for Appellant Fabian Lechuga-Esparza [10-40277]

USA v. Fabian Lechuga-Esparza

Doc. 0

Case: 10-40277

Document: 00511252075

Page: 1

Date Filed: 10/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40277 S u m m a r y Calendar October 4, 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. F A B I A N LECHUGA-ESPARZA, 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. 2:09-CR-992-1

B e fo r e HIGGINBOTHAM, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* F a b ia n Lechuga-Esparza was convicted of one count of illegal reentry into t h e United States and was sentenced to serve 46 months in prison. In this a p p e a l, he contends that his sentence is unreasonable because the district court fa ile d to accord the proper amount of weight to his mitigating factors, such as his r e a s o n s for returning to the United States, and gave too much weight to other fa c t o r s , such as his criminal history, without taking into consideration the fact t h a t his prior offenses were due to his former drug addiction. Because LechugaPursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40277

Document: 00511252075 Page: 2 No. 10-40277

Date Filed: 10/04/2010

E s p a r z a failed to mention his drug problem to the district court, his argument c o n c e r n in g this factor is reviewed for plain error only. Puckett v. United States, 1 2 9 S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5 t h Cir. 2007). His remaining arguments concerning the reasonableness of his s e n t e n c e are unavailing, and our review of the record and pertinent ju r is p r u d e n c e shows no abuse of discretion in connection with the sentence im p o s e d . United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). I n s o fa r as Lechuga-Esparza challenges the district court's weighing of his m it ig a t in g sentencing factors, this argument amounts to a disagreement with t h e district court's analysis of these factors and the appropriateness of his w it h in -g u id e lin e s sentence. This disagreement does not suffice to show error in c o n n e c t io n with his sentence. United States v. Gomez-Herrera, 523 F.3d 554, 5 6 5 -6 6 (5th Cir. 2008). Lechuga-Esparza has not rebutted the presumption of r e a s o n a b le n e s s that attaches to his within-guidelines sentence, nor has he s h o w n that his sentence was unreasonable. United States v. Mares, 402 F.3d 5 1 1 , 519-20 (5th Cir. 2005); United States v. Alonzo, 435 F.3d 551, 554-55 (5th C ir . 2006). Additionally, Lechuga-Esparza preserves for further review a challenge to t h e presumption of reasonableness on the basis that § 2L1.2 is not empirically g r o u n d e d . This challenge is, as he concedes, unavailing under our prior cases. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 3 7 8 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th C ir .), cert. denied, 130 S. Ct. 192 (2009). AFFIRMED.

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