USA v. Marcos Calderon

Filing

Case: 10-50095

Document: 00511201803

Page: 1

Date Filed: 08/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50095 S u m m a r y Calendar August 12, 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. M A R C O S ALFREDO CALDERON, 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-2876-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* M a r c o s Alfredo Calderon appeals the 46-month term of imprisonment im p o s e d for his guilty plea conviction of violating 8 U.S.C. § 1326(a) and (b)(2) b y being found in the United States without permission, following removal. He a r g u e s that his sentence, which fell within his advisory sentencing guidelines r a n g e , is substantively unreasonable because it was greater than necessary to a c h ie v e the sentencing goals set forth in 18 U.S.C. § 3553(a). Calderon contends t h a t his sentence overstates the seriousness of his illegal reentry offense 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Case: 10-50095

Document: 00511201803 Page: 2 No. 10-50095

Date Filed: 08/12/2010

d o e s not properly account for his personal history and characteristics, including h is motive for reentering the United States. He also argues that the sentencing g u id e lin e used in determining his sentence, U.S.S.G. § 2L1.2, is flawed because it ignores the remote nature of his prior offense. G e n e r a lly , this court reviews criminal sentences for reasonableness. Gall v . United States, 552 U.S. 38, 51 (2007). This court first determines whether the d is t r ic t court committed any procedural errors. Id. If the district court's

d e c is io n is procedurally sound, this court will "consider the substantive r e a s o n a b le n e s s of the sentence imposed under an abuse-of-discretion standard . . . tak[ing] into account the totality of the circumstances." Id. The Government c o n t e n d s that we should review the district court's sentencing decision for plain e r r o r only because Calderon did not object to the reasonableness of his sentence in the district court. We need not decide the appropriate level of review, because C a ld e r o n 's sentence may be affirmed even under reasonableness review. B e fo r e imposing Calderon's sentence, the district court judge considered t h e advisory sentencing guidelines range, the information in the presentence r e p o r t , and the § 3553(a) factors. The judge also considered the arguments p r e s e n t e d at sentencing and determined that a guideline sentence would be a p p r o p r ia t e . See United States v. Mondragon-Santiago, 564 F.3d 357, 365-67 (5 th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v.

C a m p o s -M a ld o n a d o , 531 F.3d 337, 339 (5th Cir. 2008). Calderon has not shown t h a t the district court erred or abused its discretion in selecting his sentence or, c o n s e q u e n t ly , that the within-guidelines sentence imposed in his case is u n r e a s o n a b le . See Gall, 552 U.S. at 51; United States v. Cooks, 589 F.3d 173, 1 8 6 (5th Cir. 2009), cert. denied 130 S. Ct. 1930 (2010). The judgment of the district court is AFFIRMED.

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