USA v. Raul Cantu

Filing

UNPUBLISHED OPINION FILED. [10-50091 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 10/29/2010 for Appellant Raul Arvid Cantu [10-50091]

USA v. Raul Cantu

Doc. 0

Case: 10-50091

Document: 00511258846

Page: 1

Date Filed: 10/08/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50091 S u m m a r y Calendar October 8, 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. R A U L ARVID CANTU, also known as Victor Alarcon, 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. 5:09-CR-27-1

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* R a u l Arvid Cantu appeals his 37-month sentence imposed following his g u ilt y plea conviction for illegal reentry after removal, in violation of 8 U.S.C. § 1326. He argues that the presumption of reasonableness does not apply to his w it h in -g u id e lin e s sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not supported by empirical data. Cantu also argues that the sentence is greater than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a). He contends that a sentence below the guidelines is sufficient because
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-50091

Document: 00511258846 Page: 2 No. 10-50091

Date Filed: 10/08/2010

t h e 16-level enhancement was based on a 25-year old conviction; his personal b e lo n g in g s were stolen from his apartment after his arrest; and he was r e h a b ilita te d . As Cantu concedes, his argument that the presumption of reasonableness does not apply because § 2L1.2 is not empirically-based is foreclosed by United S t a t e s v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2 0 0 9 ), and United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2 0 0 8 ). Cantu's substantive reasonableness argument is likewise unavailing. C a n t u 's arguments fail to overcome the presumption of reasonableness that a t t a c h e s to his within-guidelines sentence. See Duarte, 569 F.3d at 529-31. Furthermore, Cantu's belief that the mitigating factors presented for the district c o u r t's consideration at sentencing should have been balanced differently is in s u ffic ie n t to disturb the presumption. See United States v. Gomez-Herrera, 523 F .3 d 554, 565-66 (5th Cir. 2008). AFFIRMED.

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