USA v. Onario Gonzalez-Morale

Filing

UNPUBLISHED OPINION FILED. [10-50222 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/17/2010 for Appellant Onario Gonzalez-Morales [10-50222]

USA v. Onario Gonzalez-Morale Case: 10-50222

Document: 00511276337 Page: 1 Date Filed: 10/27/2010

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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 . 10-50222 S u m m a r y Calendar October 27, 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. O N A R I O GONZALEZ-MORALES, also known as Justiniano Gonzalez, 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-2779-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* O n a r io Gonzalez-Morales (Gonzalez) appeals following his guilty plea c o n v ic t io n for illegal reentry in violation of 8 U.S.C. § 1326. The district court im p o s e d a sentence of 24 months in prison, to be followed by a three-year term o f nonreporting supervised release. On appeal, Gonzalez argues that the

s e n te n c e was greater than necessary to meet the sentencing goals outlined in 18 U .S .C . § 3553(a).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50222 Document: 00511276337 Page: 2 Date Filed: 10/27/2010 No. 10-50222 B e c a u s e Gonzalez did not object to the imposed sentence as unreasonable, w e review this claim for plain error. United States v. Peltier, 505 F.3d 389, 3919 2 (5th Cir. 2007). Gonzalez's disagreement with the within-guidelines sentence im p o s e d does not suffice to rebut the presumption of reasonableness. See Gall v . United States, 552 U.S. 38, 51 (2007); United States v. Campos-Maldonado, 5 3 1 F.3d 337, 338 (5th Cir. 2008); United States v. Gomez-Herrera, 523 F.3d 554, 5 6 5 -6 6 (5th Cir. 2008). G o n z a le z raises two additional arguments, which he acknowledges are fo r e c lo s e d by our precedent, to preserve for further review. He argues that, in lig h t of Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), the presumption o f reasonableness does not apply to his within-guidelines sentence because the ille g a l reentry Guideline, U.S.S.G. § 2L1.2, lacks an empirical basis. We have c o n s is t e n t ly rejected Gonzalez's argument, concluding that Kimbrough does not q u e s t io n the presumption of reasonableness and does not require district or a p p e lla te courts to independently analyze the empirical grounding behind each in d iv id u a l Guideline. See United States v. Duarte, 569 F.3d 528, 530-31 (5th C ir .), cert. denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 5 6 4 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Gonzalez also argues that the Guidelines produce unwarranted sentencing d is p a r it ie s between defendants who can participate in a fast-track program and d e fe n d a n t s who cannot. We have held that "any sentencing disparity result from fa s t track disposition is not unwarranted." Gomez-Herrera, 523 F.3d at 563. Because Gonzalez has not shown that his 24-month prison sentence is s u b s t a n t iv e ly unreasonable, the judgment of the district court is AFFIRMED.

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