USA v. Guadalupe Olmos-Olvera

Filing

UNPUBLISHED OPINION FILED. [10-50014 Affirmed] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 10/21/2010 for Appellant Guadalupe Olmos-Olvera [10-50014]

USA v. Guadalupe Olmos-Olvera

Doc. 0

Case: 10-50014

Document: 00511249530

Page: 1

Date Filed: 09/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50014 S u m m a r y Calendar September 30, 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. G U A D A L U P E OLMOS-OLVERA, also known as Juan Garcia-Alvarado, also k n o w n as Guadalupe Olvera Olmos, also known as Guadalupe Olmos, also k n o w n as Antonio Alvarado, also known as Guadalupe Garcia, also known as G u a d a lu p e Olvera-Olmos, also known as Guadalupe Ramos-Olmos, also known a s Guadalupe Filiberto Olmos, 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. 1:09-CR-452-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* G u a d a l u p e Olmos-Olvera (Olmos) pleaded guilty to illegal reentry, in v io la t io n of 8 U.S.C. § 1326. The district court sentenced Olmos to 96 months of im p r is o n m e n t , which was within the advisory guidelines imprisonment range o f 77 to 96 months. The calculation of this range included a 16-level

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 10-50014

Document: 00511249530 Page: 2 No. 10-50014

Date Filed: 09/30/2010

e n h a n c e m e n t under U.S.S.G. § 2L1.2(b)(1)(A) because Olmos was previously d e p o r t e d following a conviction for a crime of violence. He now appeals, arguing t h a t his sentence is unreasonably long and greater than necessary to satisfy the g o a ls of 18 U.S.C. § 3553(a). He also argues that the guidelines that govern ille g a l reentry offenses lack an empirical foundation and thus deprive his s e n te n c e of a presumption of reasonableness on appeal. T h e district court heard Olmos's arguments in mitigation of his sentence a n d nevertheless concluded that a within-guidelines sentence was appropriate in light of the facts before it. That conclusion is entitled to deference, and we p r e s u m e it is reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007); U n ite d States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008). The district court w a s "in a superior position to find facts and assess their import under § 3553(a)," G a ll, 552 U.S. at 51, and we see no reason to disturb the district court's d is c r e t io n a r y decision to impose a sentence within the guidelines range. Furthermore, as Olmos concedes, his argument that the appellate presumption o f reasonableness is inapplicable due to the lack of an empirical basis in the g u id e lin e s governing illegal reentry offenses is foreclosed. See United States v. D u a r te , 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); U n i t e d States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. d e n ie d , 130 S. Ct. 192 (2009). A F F IR M E D .

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