USA v. Ramon Nunez-Morale

Filing 920101220

Opinion

Case: 10-50388 Document: 00511325283 Page: 1 Date Filed: 12/17/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50388 S u m m a r y Calendar December 17, 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. R A M O N NUNEZ-MORALES, also known as Nicolas Iciordia, 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. 1:10-CR-33-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* R a m o n Nunez-Morales appeals the 57-month sentence he received fo llo w in g his guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. Although he argues to the contrary, sentences within the properlyc a lc u la t e d guidelines range determined under U.S.S.G. § 2L1.2 are entitled to a presumption of reasonableness. See United States v. Mondragon-Santiago, 564 F .3 d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 92 (2009). Additionally, b e c a u s e Nunez-Morales did not object to his sentence as unreasonable in 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50388 Document: 00511325283 Page: 2 Date Filed: 12/17/2010 No. 10-50388 d is t r ic t court, we review the reasonableness of the sentence for plain error. See U n ite d States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). F ir s t , Nunez-Morales asserts that his sentence overstated the danger he p r e s e n t s to the community and his risk of recidivism because § 2L1.2 "double c o u n t s " the defendant's criminal record, using it to determine his offense level a n d his criminal history score. A sentence calculated under § 2L1.2 is not u n r e a s o n a b le because the Guideline double counts the defendant's criminal h is t o r y . See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. d e n ie d , 130 S. Ct. 378 (2009); Mondragon-Santiago, 564 F.3d at 366-67; see also § 2L1.2, comment. (n.6) (a conviction that triggers the 16-level enhancement may b e assigned criminal history points). N e x t , Nunez-Morales asserts that the Guidelines produced a sentence g r e a t e r than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) b e c a u s e they failed to account adequately for his personal circumstances, h is t o r y , and characteristics, in that he has been "mostly law-abiding and hardw o r k in g " for the past decade. He contends, relatedly, that illegal reentry is not e v il in itself and essentially is an "international trespass." A sentence resulting from the 16-level enhancement under § 2L1.2 is not u n r e a s o n a b le simply because illegal reentry arguably is akin to a trespass o ffe n s e . See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). The court listened to Nunez-Morales's arguments for a lower sentence and r e je c t e d them. Nunez-Morales has failed to offer a persuasive reason for this c o u r t to disturb the district court's sentence at the bottom of the applicable g u id e lin e s range. See id. As Nunez-Morales has failed to demonstrate any e r r o r , plain or otherwise, the judgment of the district court is AFFIRMED.

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