USA v. Jesus Mendoza-Oliva

Filing

UNPUBLISHED OPINION FILED. [10-50184 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/29/2010 for Appellant Jesus Norberto Mendoza-Olivas [10-50184]

USA v. Jesus Mendoza-Oliva Case: 10-50184

Document: 00511285894 Page: 1 Date Filed: 11/05/2010

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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 . 10-50184 S u m m a r y Calendar November 5, 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. J E S U S NORBERTO MENDOZA-OLIVAS, also known as Jesus Mendoza, 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-2909-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* J e s u s Norberto Mendoza-Olivas (Mendoza) pleaded guilty to the charge of ille g a l reentry. See 8 U.S.C. § 1326. He appeals, arguing that his sentence is g r e a t e r than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a) and is therefore unreasonable. To support his claim of unreasonableness, he

c o n t e n d s that the Guidelines "double counted" his prior drug conviction by using it to increase both his offense level and his criminal history category. This a r g u m e n t is without merit. See United States v. Duarte, 569 F.3d 528, 529-31
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50184 Document: 00511285894 Page: 2 Date Filed: 11/05/2010 No. 10-50184 (5 t h Cir.), cert. denied, 130 S. Ct. 378 (2009). His argument that U.S.S.G. § 2L1.2 was developed in a problematic manner is also unavailing. See id.; U n ite d States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2008). T h e r e is no merit to Mendoza's argument that his offense was an in t e r n a t io n a l trespass. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5 t h Cir. 2006). Similarly without merit is Mendoza's argument that his

s e n te n c e overstated the seriousness of his unlawful reentry offense, failed to p r o v id e just punishment, undermined respect for the law, and failed to reflect h is personal history and characteristics or his good motive for returning to the U n ite d States. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. d e n ie d , 130 S. Ct. 1930 (2010). Mendoza has not rebutted the applicable

p r e s u m p t io n of reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th C ir . 2006). Accordingly, he has not shown that the district court plainly erred in imposing a within-guidelines sentence. See United States v. Peltier, 505 F.3d 3 8 9 , 391-92 (5th Cir. 2007). AFFIRMED.

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