USA v. Jose Moyers-Saenz

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USA v. Jose Moyers-Saenz

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Case: 10-50004

Document: 00511191524

Page: 1

Date Filed: 08/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50004 S u m m a r y Calendar August 2, 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. J O S E MARIO MOYERS-SAENZ, 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 Western District of Texas U S D C No. 3:09-CR-1833-1

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* J o s e Mario Moyers-Saenz (Moyers) pleaded guilty to illegally reentering t h e United States following deportation and was sentenced to a 46-month term o f imprisonment. See 8 U.S.C. § 1326. Moyers contends that U.S.S.G. § 2L1.2 im p r o p e r ly results in the use of his prior drug trafficking conviction to determine b o th his offense level and his criminal history score, resulting in double c o u n t in g . He contends further that the sentence imposed was greater than n e c e s s a r y , in light of the sentencing factors set forth in 18 U.S.C. § 3553(a), and
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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t h a t it is therefore unreasonable. He maintains that his offense was at bottom m e r e ly an international trespass and that his sentence was too severe for the c r im e . Moyers also argues that the lack of an empirical basis for § 2L1.2

p r e c lu d e s an appellate presumption that his sentence is reasonable. Additionally, he contends that the lack of a fast track program in the Western D is t r ic t of Texas results in an unwarranted sentencing disparity and makes his s e n te n c e unreasonable. S e n t e n c in g decisions are reviewed for abuse of discretion. United States v . Rowan, 530 F.3d 379, 381 (5th Cir. 2008). This review process is bifurcated. Id. at 381 (citing Gall v. United States, 552 U.S. 38, 49-51 (2008)). The appellate c o u r t must first ensure that the district court did not commit a significant p r o c e d u r a l error. Id. "The District Court commits a procedural error if . . . it m is c a lc u la t e s or fails to calculate the proper Guidelines range [or] imposes a s e n te n c e based on clearly erroneous facts." Id.; see United States v. Klein, 543 F .3 d 206, 213 (5th Cir. 2008) ("An error in applying the Guidelines is a s ig n ific a n t procedural error that constitutes an abuse of discretion.") If the s e n te n c e is procedurally sound, the appellate court must consider the " s u b s t a n t i v e reasonableness" of the sentence under an abuse of discretion s t a n d a r d . Rowan, 530 F.3d at 381. B e c a u s e Moyers raises his double-counting claim for the first time on a p p e a l, the claim is reviewed for plain error. See United States v. MondragonS a n tia g o , 564 F.3d. 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). "Double counting is impermissible only where the guidelines at issue prohibit it." United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996). The commentary to § 2L1.2 states that "[a] conviction taken into account under subsection (b)(1) is n o t excluded from consideration of whether that conviction receives criminal h is t o r y points." § 2L1.2, comment. (n.6). We have upheld double counting under sim ila r circumstances involving U.S.S.G. § 2K1.2. See United States v. Hawkins, 6 9 F.3d 11, 13-15 (5th Cir. 1995). It was not improper to use Moyers's drug 2

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t r a ffic k i n g conviction to enhance his offense level and also to calculate his c r im in a l history points. B e c a u s e the sentence is procedurally sound, we next consider whether it is substantively reasonable. Gall, 552 U.S. at 51. We conclude that Moyers's s e n te n c e is substantively reasonable also. The district court considered Moyers's a r g u m e n t s for a sentence below the range set by the Sentencing Guidelines but d e t e r m in e d that a sentence at the low end of that range was appropriate. Because Moyers's sentence is "within a properly calculated Guideline range," it c a r r ie s a presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 5 5 4 (5th Cir. 2006); see also Rita v. United States, 551 U.S. 338, 351 (2007) (u p h o ld in g the use of such a presumption). Moyers advances no persuasive r e a s o n for questioning the application of the presumption of reasonableness that a t t a c h e s to his within-guidelines sentence or for disturbing the district court's c h o ic e of sentence. See Gall, 552 U.S. at 51 (stating that "the fact that the a p p e lla te court might reasonably [conclude] that a different sentence [is] a p p r o p r ia te is insufficient to justify reversal of the district court"). M o y e r s concedes that precedent forecloses his argument that the lack of a fast-track program in the Western District of Texas makes his sentence u n r e a s o n a b le because it creates an unwarranted sentencing disparity. See U n ite d States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008). Additionally, M o y e r s concedes that precedent forecloses his argument that the lack of an e m p ir ic a l basis for § 2L1.2 precludes an appellate presumption that his sentence is reasonable. See Mondragon-Santiago, 564 F.3d at 366-67. He raises the c la im s , however, to preserve them for future review. A F F IR M E D .

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