USA v. Darwin Galindo-Yanes

Filing

UNPUBLISHED OPINION FILED. [10-50043 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 10/20/2010 for Appellant Darwin Galindo-Yanes [10-50043]

USA v. Darwin Galindo-Yanes

Doc. 0

Case: 10-50043

Document: 00511248011

Page: 1

Date Filed: 09/29/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50043 S u m m a r y Calendar September 29, 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 , versu s D A R W I N GALINDO-YANES, 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 N o . 2:09-CR-165-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

D a r w in Galindo-Yanes pleaded guilty to violating 8 U.S.C. § 1326(a) by h a v in g been found unlawfully present in the United States after deportation fol-

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50043

Document: 00511248011 Page: 2 No. 10-50043

Date Filed: 09/29/2010

lo w in g an aggravated-felony conviction. The district court sentenced him under § 1326(b)(2), at the bottom of the guideline range, to 37 months of imprisonment. G a lin d o -Y a n e s argues that the court treated the range as presumptively r e a s o n a b le when it directed defense counsel to be more specific in objecting to t h e range. Because Galindo-Yanes failed to object on that basis, we review this c la im for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 3 6 0 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Galindo cannot show error, p la in or otherwise, because the district court merely sought to comply with the reasoning in Rita v. United States, 551 U.S. 338, 356-57 (2007). G a lin d o -Y a n e s also contends, as he did in the district court, that his sent e n c e is substantively unreasonable because his prior crimes of violence that w e r e used to support the 16-level enhancement are so old. "[A] sentence within a properly calculated Guideline range is presumptively reasonable." United S ta te s v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Although the prior crimes w e r e too old to receive criminal history points, Galindo-Yanes does not dispute t h a t he had three prior convictions for crimes of violenceSSconvictions for aggrav a t e d assault and aggravated battery in 1988 and a 1992 conviction for taking in d e c e n t liberties with a minor child. Galindo-Yanes illegally reentered the U n ite d States in January 2009, only eight months after his April 2008 deport a t io n , and he admitted using cocaine from 2000 to 2007. Thus, the totality of t h e circumstances shows that the district court did not abuse its discretion by d e n y in g a downward variance and sentencing within the guidelines range. See G a ll v. United States, 552 U.S. 38, 51 (2007); see also Alonzo, 435 F.3d at 554. A F F IR M E D .

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