USA v. Ernesto Riasco-Caicedo

Filing

UNPUBLISHED OPINION FILED. [10-50142 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 10/14/2010 for Appellant Ernesto Riasco-Caicedo [10-50142]

USA v. Ernesto Riasco-Caicedo

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Case: 10-50142

Document: 00511242332

Page: 1

Date Filed: 09/23/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50142 S u m m a r y Calendar September 23, 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. E R N E S T O RIASCO-CAICEDO, 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-CR­454-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* E r n e s t o Riasco-Caicedo was convicted of one count of illegal reentry into t h e United States, and the district court sentenced him to serve 65 months in p r is o n and a three-year term of supervised release. In this appeal, he argues t h a t his within-guidelines sentence is unreasonable because the district court fa ile d to properly account for his reasons for returning to this country, his d iffic u lt childhood, and the unavailability of the fast track adjustment. He also c o n t e n d s his within-guidelines sentence should not be presumed reasonable
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50142

Document: 00511242332 Page: 2 No. 10-50142

Date Filed: 09/23/2010

b e c a u s e U.S.S.G. § 2L1.2 is not empirically based and is thus flawed under K im b r o u g h v. United States, 552 U.S. 85, 109-10 (2007). These arguments are u n a v a ilin g , and our review of the record and pertinent jurisprudence shows no a b u s e of discretion in connection with the sentence imposed. See United States v . Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). T h e final argument raised by Riasco-Caicedo is that his sentence is u n r e a s o n a b le because his prior conviction for two robberies was used to calculate b o th his offense level and his criminal history score, including points for the r e c e n tn e s s of the conviction. The empirical data and multiple-counting

a r g u m e n t s raised by Riasco-Ciacedo are substantially similar to others that have p r e v io u s ly been rejected by this court and are thus unavailing. See United S ta te s v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2 0 0 9 ); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), c e r t. denied, 130 S. Ct. 192 (2009). His fast track argument is likewise

fo r e c lo s e d . See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.), c e r t. denied, 129 S. Ct. 624 (2008). F in a lly , Riasco-Ciacedo's arguments concerning the district court's w e ig h in g of his mitigating sentencing factors amount to a disagreement with the d is t r ic t court's weighing of these factors and the appropriateness of his w it h in -g u id e lin e s sentence. This disagreement does not suffice to show error in c o n n e c t io n with his sentence. See Gomez-Herrera, 523 F.3d at 565-66. RiascoC ia c e d o has not rebutted the presumption of reasonableness that attaches to his w it h in -g u id e lin e s sentence, nor has he shown that his sentence was u n r e a s o n a b le . See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005); U n ite d States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). Accordingly, the ju d g m e n t of the district court is AFFIRMED.

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