USA v. Jose Guerrero-Montelongo

Filing

UNPUBLISHED OPINION FILED. [10-50148 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/13/2010 for Appellant Jose Felipe Guerrero-Montelongo [10-50148]

USA v. Jose Guerrero-Montelongo Case: 10-50148

Document: 00511301750 Page: 1 Date Filed: 11/22/2010

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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 . 10-50148 S u m m a r y Calendar November 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J O S E FELIPE GUERRERO-MONTELONGO, D e fe n d a n t - Appellant

A p p e a ls from the United States District Court fo r the Western District of Texas U S D C No. 2:09-CR-566-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. PER CURIAM:* J o s e Felipe Guerrero-Montelongo appeals the 96-month Guidelines s e n te n c e he received for illegal reentry under U.S.S.G. § 2L1.2. He asserts that t h e sentence overstated the seriousness of his criminal history because Section 2 L 1 .2 "double-counts" the defendant's criminal record, using it to determine his o ffe n s e level and his criminal history score. Guerrero-Montelongo also asserts t h a t his sentence was unjust and undermined respect for the law because illegal r e e n tr y is essentially an international trespass offense. Finally, he contends
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50148 Document: 00511301750 Page: 2 Date Filed: 11/22/2010 No. 10-50148 t h a t the sentence did not account for his personal history and characteristics, n o ti n g that he entered the United States as a youth to find work, spent the m a jo r it y of his life in the country, and reentered the United States to be with his fa m ily . We review the district court's sentence for reasonableness in light of the s e n te n c in g factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 5 1 8 -1 9 (5th Cir. 2005). We apply the abuse of discretion standard, taking into a c c o u n t the totality of the circumstances, and we presume that a sentence within a properly calculated Guidelines range is reasonable. Gall v. United States, 552 U .S . 38, 51 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). T h e district court considered the appropriate sentencing factors under S e c tio n 3553(a) and Guerrero-Montelongo's arguments for the Guidelines m in im u m sentence in determining his sentence. The court explained that it was u n w illin g to impose the Guidelines minimum because of Guerrero-Montelongo's p e r s o n a l history and characteristics, including his past criminal behavior, use o f numerous birth dates and Social Security numbers, convictions for delivering c o n t r o lle d substances, and the egregious nature of his prior assault conviction.

A sentence calculated under Section 2L1.2 is not unreasonable because it " d o u b le -c o u n t [s ]" the defendant's criminal history. See United States v. Duarte, 5 6 9 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v . Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 1 9 2 (2009); see also § 2L1.2, cmt. n.6 (a conviction that triggers the 16-level e n h a n c e m e n t may be assigned criminal history points). Nor is a sentence

r e s u lt in g from the 16-level enhancement under Section 2L1.2 unreasonable b e c a u s e illegal reentry arguably is akin to a trespass offense. See United States v . Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Finally, a sentence calculated u n d e r Section 2L1.2 is not unreasonable simply because the alien entered the c o u n t r y to find work, lived in the United States for most of his life, and reentered 2

Case: 10-50148 Document: 00511301750 Page: 3 Date Filed: 11/22/2010 No. 10-50148 t o be with his family. See, e.g., United States v. Gomez-Herrera, 523 F.3d 554, 5 6 5 -6 6 (5th Cir. 2008) (holding that a Guidelines sentence was reasonable a lt h o u g h the defendant lived in the United States from infancy until age 51 and r e e n te r e d to visit his father before he died). The district court reasonably concluded that a lengthy sentence was n e c e s s a r y to achieve deterrence and protect the public in light of GuerreroM o n te lo n g o 's extensive criminal record. He has not shown that the court abused it s discretion, and he fails to overcome the presumption of reasonableness. See G a ll, 552 U.S. at 51; United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), c e r t. denied, 130 S. Ct. 1930 (2010). A F F IR M E D .

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