USA v. Alfredo Grijalva-Varga

Filing

UNPUBLISHED OPINION FILED. [10-50364 Affirmed ] Judge: JLW , Judge: RHB , Judge: FPB Mandate pull date is 12/27/2010 for Appellant Alfredo Grijalva-Vargas [10-50364]

USA v. Alfredo Grijalva-Varga Case: 10-50364

Document: 00511310866 Page: 1 Date Filed: 12/03/2010

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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 . 10-50364 S u m m a r y Calendar December 3, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. A L F R E D O GRIJALVA-VARGAS, 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-3215-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* A lfr e d o Grijalva-Vargas appeals his within-Guidelines sentence of 14 m o n th s ' imprisonment, following his guilty-plea conviction for illegal reentry a ft e r deportation, in violation of 8 U.S.C. § 1326(a). Grijalva contends his s e n te n c e , which is at the top of the advisory Guidelines Sentencing range, is: substantively unreasonable because it is greater than necessary to meet the s e n te n c in g goals of 18 U.S.C. § 3553(a) because it does not properly account for h is mitigating history and characteristics, including his cultural assimilation
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50364 Document: 00511310866 Page: 2 Date Filed: 12/03/2010 No. 10-50364 a n d motives for returning to the United States; and not entitled to a p r e s u m p t io n of reasonableness because the district court improperly imposed the s e n te n c e based on its opposition to his tattoos. G r i j a l v a does not claim his sentence is procedurally unreasonable. Grijalva also concedes he did not object in district court to the substantive r e a s o n a b le n e s s of his sentence, but he maintains he was not required to do so, c la im in g it is our duty to determine whether his sentence is reasonable. He r e c o g n iz e s this contention is foreclosed in this circuit and raises it only for p o s s ib le future review. Accordingly, we review only for plain error. See United S ta te s v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under this standard, G r ija lv a must show a clear or obvious error affecting his substantial rights. E.g., P u c k e tt v. United States, 129 S. Ct. 1423, 1429 (2009). When, as here, the d is t r ic t court imposes a sentence within a properly-calculated Guidelines range, we accord great deference and apply a rebuttable presumption of

r e a s o n a b le n e s s . Gall v. United States, 552 U.S. 38, 51-52 (2007); United States v . Newson, 515 F.3d 374, 379 (5th Cir. 2008). Grijalva has failed to show the district court committed plain error by not im p o s in g a lower sentence based on his cultural assimilation and motives. See U n ite d States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United S t a te s v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). Although cultural a s s im ila t io n is a factor the district court may consider in deciding whether to d e p a r t from the advisory Guidelines range, it is one of many in such a factin t e n s iv e inquiry. See United States v. Castillo, 386 F.3d 632, 638 (5th Cir. 2 0 0 4 ); see also U.S.S.G. § 2L1.2 cmt. n.8. Similarly, whether to impose a lower s e n te n c e based on Grijalva's motives was part of the inquiry. The court did not e r r in refusing to mitigate his offense on that basis. F in a lly , Grijalva has failed to rebut the presumption of reasonableness a ffo r d e d his within-Guidelines sentence. See United States v. Alonzo, 435 F.3d 5 5 1 , 554 (5th Cir. 2006). There is no evidence, certainly not sufficient to show 2

Case: 10-50364 Document: 00511310866 Page: 3 Date Filed: 12/03/2010 No. 10-50364 p la in error, that the court based its decision on Grijalva's tattoos. Instead, it a d o p t e d the presentence investigation report, which described Grijalva's tattoos; a n d , during sentencing, it referenced his tattoos as reflecting he "h[u]ng around a pretty tough crowd". A F F IR M E D .

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