USA v. Jose Abrego-Mejia

Filing

UNPUBLISHED OPINION FILED. [10-50272 Affirmed ] Judge: HRD , Judge: CES , Judge: JWE Mandate pull date is 11/30/2010 for Appellant Jose Melvin Abrego-Mejia [10-50272]

USA v. Jose Abrego-Mejia: 10-50272 Case

Document: 00511288672 Page: 1 Date Filed: 11/09/2010

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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 . 10-50272 S u m m a r y Calendar November 9, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J O S E MELVIN ABREGO-MEJIA, 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. 1:10-CR-1-1

B e fo r e DEMOSS, STEWART, and ELROD, Circuit Judges. PER CURIAM:* J o s e Melvin Abrego-Mejia (Abrego) pleaded guilty without a written plea a g r e e m e n t to illegal reentry after removal and was sentenced within the a d v is o r y guidelines range to 46 months of imprisonment and three years of s u p e r v is e d release. A b r e g o argues that an appellate presumption of reasonableness should not a p p ly to his sentence because the illegal reentry Sentencing Guideline § 2L1.2, is not supported by empirical data. He correctly acknowledges, however, that
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50272 Document: 00511288672 Page: 2 Date Filed: 11/09/2010 No. 10-50272 t h is argument is foreclosed by this court's precedent, and he asserts that he is r a is in g it only to preserve it for future review. See United States v. Duarte, 569 F .3 d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). Abrego also argues that the district court imposed a sentence greater than n e c e s s a r y to meet the goals of sentencing in 18 U.S.C. § 3553(a) and that his s e n te n c e is, therefore, substantively unreasonable. He contends that (1) the S e n te n c in g Guidelines' double-counting of his prior aggravated assault c o n v ic t io n in both his criminal history and his offense level calculations resulted in a guidelines range that was greater than necessary to deter future crime and p r o t e c t the public; and (2) the Sentencing Guidelines did not take into account t h e fact that he was a hard worker who was working to earn money to send back t o his impoverished relatives in El Salvador, who had been displaced by an e a r t h q u a k e . Because Abrego did not raise this argument before the district c o u r t, we review for plain error. See United States v. Peltier, 505 F.3d 389, 392 (5 t h Cir. 2007). The record demonstrates that the district court considered the § 3553(a) fa c t o r s and Abrego's arguments at sentencing before determining that Abrego's w it h in -g u id e lin e s sentence was appropriate. Abrego has failed to rebut the p r e s u m p t io n of reasonableness that this court applies to his within-guidelines s e n te n c e . See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2 0 0 8 ). Accordingly, Abrego has not shown that the district court committed p la in error by imposing an unreasonable sentence. See Peltier, 505 F.3d at 39192. AFFIRMED.

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