USA v. Carlos Caballero-Cervante

Filing

UNPUBLISHED OPINION FILED. [10-50220 Affirmed] Judge: JLW , Judge: RHB , Judge: FPB. Mandate pull date is 11/23/2010 for Appellant Carlos Gerardo Caballero-Cervantes [10-50220]

USA v. Carlos Caballero-Cervante Case: 10-50220

Document: 00511281594 Page: 1 Date Filed: 11/02/2010

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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 . 10-50220 S u m m a r y Calendar November 2, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. C A R L O S GERARDO CABALLERO-CERVANTES, also known as Carlos C a b a lle r o , D e fe n d a n t - Appellant

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-2787-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* C a r lo s Gerardo Caballero-Cervantes pleaded guilty to attempted illegal r e e n tr y into the United States, in violation of 8 U.S.C. § 1326, and making a fa ls e claim of United States citizenship, in violation of 18 U.S.C. § 911. He a p p e a ls his sentence of 24 months imprisonment--a sentence in the middle of t h e advisory Sentencing Guidelines range. He contends the sentence was

s u b s t a n t iv e ly unreasonable because it was greater than necessary to meet the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50220 Document: 00511281594 Page: 2 Date Filed: 11/02/2010 No. 10-50220 g o a ls of 18 U.S.C. § 3553(a), in the light of his asserted benign motives for r e t u r n in g to the United States and his claimed minor criminal history. B e fo r e reaching that issue, we dispose of Caballero's assertion that his s e n te n c e is not presumptively reasonable because the Guideline on which it was b a s e d , § 2L1.2, is unsupported by empirical data. As Caballero concedes, this c la im has been rejected by our court. See United States v. Duarte, 569 F.3d 528, 5 2 9 -3 1 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). He raises the issue only to p r e s e r v e it for possible further review. A lt h o u g h post-Booker, the Guidelines are advisory only, and an ultimate s e n te n c e is reviewed for reasonableness under an abuse-of-discretion standard, t h e district court must still properly calculate the advisory Guideline-sentencing r a n g e for use in deciding on the sentence to impose. Gall v. United States, 552 U .S . 38, 49-51 (2007). Pursuant to Gall, we engage in a bifurcated review of the s e n te n c e imposed by the district court, considering both the procedural propriety a n d substantive reasonableness of the sentence in the light of the factors d e lin e a t e d in 18 U.S.C.§ 3553(a). United States v. Delgado-Martinez, 564 F.3d 7 5 0 , 752-53 (5th Cir. 2009). Procedural error is not claimed. In that regard, "a sentence within a p r o p e r ly calculated Guideline range is presumptively reasonable". United States v . Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States, 551 U .S . 338, 347 (2007). Accordingly, this issue is reviewed only for plain error. E.g., United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). As Caballero concedes, he did not object in district court to the r e a s o n a b le n e s s of the sentence. See United States v. Arviso-Mata, 442 F.3d 382, 3 8 4 (5th Cir. 2006). To establish reversible plain error, Caballero must show, in te r alia, a clear or obvious error that affects his substantial rights. E.g., P u c k e tt v. United States, 129 S. Ct. 1423, 1429 (2009). If he does so, our court r e t a in s discretion to correct the error; generally, we will do so only if the error

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Case: 10-50220 Document: 00511281594 Page: 3 Date Filed: 11/02/2010 No. 10-50220 s e r io u s ly affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s . Id. F o r the reasons that follow, there was no error. Therefore, his claim fails n o t only under plain-error review but also under the ordinary standard. I n maintaining his sentence is substantively unreasonable, Caballero e s s e n t ia lly seeks to have our court re-weigh the § 3553(a) factors. Our court a c c o r d s great deference to within-Guidelines sentences that give proper weight t o the § 3553(a) factors. United States v. Campos-Maldonado, 531 F.3d 337, 338 (5 t h Cir. 2008). "[T]he sentencing judge is in a superior position to find facts and ju d g e their import under § 3553(a) with respect to a particular defendant". Id. a t 339. Even if our court would have considered imposing a different sentence, s u c h consideration would be "insufficient to justify reversal of the district court". Gall, 552 U.S. at 51. A c c o r d in g ly , Caballero has not shown his sentence was substantively u n r e a s o n a b le , and he has not rebutted the presumption of reasonableness that a t t a c h e s to his within-Guidelines sentence. See United States v. Gomez-Herrera, 5 2 3 F.3d 554, 565-66 (5th Cir. 2008). The district court considered and rejected C a b a l le r o 's contentions for a more lenient sentence. It determined a withinG u id e lin e s sentence was appropriate in the light of Caballero's extensive c r im in a l history. AFFIRMED.

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