USA v. Jesus Vasquez

Filing

UNPUBLISHED OPINION FILED. [10-50214 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 12/06/2010 for Appellant Jesus Medina Vasquez [10-50214]

USA v. Jesus Vasquez se: 10-50214 Ca

Document: 00511293006 Page: 1 Date Filed: 11/15/2010

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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 . 10-50214 S u m m a r y Calendar November 15, 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 MEDINA VASQUEZ, also known as Jesus Rolando-Morales, also known a s Felix Rasso Vasquez, also known as Jesus Medina-Vasquez, 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. 1:09-CR-488-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* J e s u s Medina Vasquez appeals his 96-month sentence imposed following h is guilty plea conviction for illegal reentry after removal, in violation of 8 U.S.C. § 1326. He argues that the presumption of reasonableness does not apply to his w it h in -g u id e lin e s sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not supported by empirical data. Vasquez also argues that the s e n te n c e is greater than necessary to meet the sentencing goals outlined in 18

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50214 Document: 00511293006 Page: 2 Date Filed: 11/15/2010 No. 10-50214 U .S .C . § 3553(a). He contends that the sentence fails to account for the

r e m o t e n e s s of his most serious offenses, fails to account for his lost opportunity t o serve his state and federal sentences concurrently, and overstates the s e r io u s n e s s of his illegal reentry offense. As Vasquez concedes, his argument that the presumption of

r e a s o n a b le n e s s does not apply because § 2L1.2 is not empirically-based is fo r e c lo s e d by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. d e n ie d , 130 S. Ct. 378 (2009), and United States v. Campos-Maldonado, 531 F.3d 3 3 7 , 338-39 (5th Cir. 2008). V a s q u e z 's substantive reasonableness argument is likewise unavailing. Vasquez's arguments fail to overcome the presumption of reasonableness that a t t a c h e s to his within-guidelines sentence. See Duarte, 569 F.3d at 529-31. Vasquez's argument that the mitigating factors presented for the district court's c o n s id e r a t io n at sentencing should have been balanced differently is insufficient t o disturb the presumption. See United States v. Gomez-Herrera, 523 F.3d 554, 5 6 5 -6 6 (5th Cir. 2008). A F F IR M E D .

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