USA v. Oscar Portillo-Mesquita

Filing

UNPUBLISHED OPINION FILED. [10-50048 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/10/2010 for Appellant Oscar Rigoberto Portillo-Mesquita [10-50048]

USA v. Oscar Portillo-Mesquita

Doc. 0

Case: 10-50048

Document: 00511268852

Page: 1

Date Filed: 10/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50048 S u m m a r y Calendar October 20, 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. O S C A R RIGOBERTO PORTILLO-MESQUITA, 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-368-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* O s c a r Rigoberto Portillo-Mesquita (Portillo) appeals the within-guidelines s e n te n c e imposed upon his guilty plea conviction for illegal reentry. See 8 U.S.C. § 1326. He argues that his 71-month sentence is unreasonable because it is g r e a ter than necessary to reflect the seriousness of his illegal reentry offense and to provide adequate deterrence and protection of the public. See 18 U.S.C. § 3553(a).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50048

Document: 00511268852 Page: 2 No. 10-50048

Date Filed: 10/20/2010

A t sentencing, the district court noted Portillo's prior offenses involving a c t s or threats of violence and the notation in the presentence report that u n s c o r e d prior convictions might warrant an upward departure or variance from t h e applicable guidelines range. The district court also noted that Portillo had b e e n removed from the United States on three occasions and that he had used a t least three aliases and a fraudulent social security number. Although the d is t r ic t court declined to depart or vary upward from the guideline range, it s t a t e d that under no circumstances would it impose a sentence less than 71 m o n th s . The district court gave sufficient reasons for sentencing Portillo at the top o f the applicable guidelines range of 57 to 71 months. See Rita v. United States, 5 5 1 U.S. 338, 356 (2007). Those same reasons were more than sufficient to e x p la in why the district court did not vary downward. See id. Portillo has not r e b u t te d the presumption of reasonableness applicable to his within-guidelines s e n te n c e . See id. at 347. Therefore, he has not shown that the district court a b u s e d its discretion in imposing a sentence at the top of the guidelines range. See Gall v. United States, 552 U.S. 38, 46, 51 (2007).1 A F F IR M E D .

Because we conclude that Portillo's arguments fail under the abuse of discretion review standard, we need not address his challenges to the application of a plain error review standard.

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