USA v. Luis Sagun-Villareal

Filing

UNPUBLISHED OPINION FILED. [10-50139 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 11/19/2010 for Appellant Luis Sagun-Villareal [10-50139]

USA v. Luis Sagun-Villareal 10-50139 Case:

Document: 00511278892 Page: 1 Date Filed: 10/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50139 S u m m a r y Calendar October 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 v. L U I S SAGUN-VILLAREAL, 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. 2:09-CR-1214-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* L u is Sagun-Villareal (Sagun) appeals the 46-month within-guidelines s e n te n c e imposed in connection with his guilty plea conviction for illegal reentry fo llo w in g deportation. Sagun argues that his sentence is greater than necessary t o accomplish the sentencing objectives of 18 U.S.C. § 3553(a) and that a s e n te n c e below the guidelines range would have provided adequate deterrence. He contends that his prior alien smuggling conviction was double counted by its u s e in adjusting his offense level and in determining his criminal history score.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50139 Document: 00511278892 Page: 2 Date Filed: 10/29/2010 No. 10-50139 T h u s , he argues that the prior conviction overstates the seriousness of his o ffe n s e and renders his sentence unreasonable. Sagun, citing Kimbrough v. U n ite d States, 552 U.S. 85 (2007), further contends that the presumption of r e a s o n a b le n e s s should not be applied to his sentence because § 2L1.2 is not b a s e d on empirical data. S a g u n 's argument that this court should not accord his within-guidelines s e n ten ce a presumption of reasonableness because the applicable guideline is not su p p orted by empirical data is foreclosed. See United States v.

M o n d r a g o n -S a n tia g o , 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2 0 0 9 ). Sagun acknowledges this argument is foreclosed but raises the issue to p r e s e r v e it for possible further review. T h e substantive reasonableness of Sagun's sentence is reviewed for abuse o f discretion. See Gall v. United States, 552 U.S. 38, 51 (2009). "[A] sentence w it h in a properly calculated Guideline range is presumptively reasonable." United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). T h e Sentencing Guidelines provide for consideration of a prior conviction fo r both criminal history and the § 2L1.2 enhancement. U.S.S.G. § 2L1.2, c o m m e n t . (n.6). d o u b le -co u n tin g Additionally, this court has rejected the argument that of prior convictions necessarily renders a sentence

u n r e a s o n a b le . United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. d e n ie d , 130 S. Ct. 378 (2009). T h e record shows that the district court listened to Sagun's arguments but u lt im a te ly determined that a sentence within the guidelines range was a p p r o p r ia te . Sagun advances no persuasive reason for this court to disturb the d is t r ic t court's choice of sentence. See United States v. Armstrong, 550 F.3d 382, 4 0 5 (5th Cir. 2008) (quoting Gall, 552 U.S. at 51, and noting that the fact that a n appellate court "`might reasonably have concluded that a different sentence w a s appropriate'" is insufficient to justify reversal), cert. denied, 130 S. Ct. 54 (2 0 0 9 ), overruled on other grounds by United States v. Balleza, 613 F.3d 432, 433 2

Case: 10-50139 Document: 00511278892 Page: 3 Date Filed: 10/29/2010 No. 10-50139 n .1 (5th Cir. 2010). Sagun has not demonstrated that the district court's

im p o s it io n of a sentence at the bottom of the guidelines range was an abuse of d is c r e t io n . T h e district court's judgment is AFFIRMED.

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