USA v. Alberto Clavell

Filing

UNPUBLISHED OPINION FILED. [10-50582 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 03/18/2011 for Appellant Alberto Clavell [10-50582]

Case: 10-50582 Document: 00511394223 Page: 1 Date Filed: 02/25/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 10-50582
Summary Calendar

February 25, 2011
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALBERTO CLAVELL, also known as Alberto Clavencio,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-1133-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Alberto Clavell appeals the sentence imposed following his guilty-plea
conviction for illegal reentry in violation of 8 U.S.C. § 1326. Clavell contends
that his sentence is substantively unreasonable because it was greater than
necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a). To
support his argument, he relies on the lack of an empirical basis to support the
illegal reentry Guideline, the double-counting of prior convictions by 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

Case: 10-50582 Document: 00511394223 Page: 2 Date Filed: 02/25/2011
No. 10-50582
Guidelines, and the alleged failure of the sentence to take account of his history
and characteristics.
We review the substantive reasonableness of Clavell’s sentence for an
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). As Clavell raises
his empirical basis argument for the first time on appeal, however, we review
that argument for plain error. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007).
As Clavell concedes, his empirical basis and double counting arguments
are foreclosed by our precedent. See United States v. Duarte, 569 F.3d 528, 52931 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v. MondragonSantiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009);
United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008); United States
v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Moreover, his disagreement with
the district court’s balancing of the § 3553(a) factors does not suffice to show
error in connection with his sentence. See Gomez-Herrera, 523 F.3d at 565-66.
He has not shown that his sentence is unreasonable, and he has not shown that
the presumption of reasonableness should not be applied to his within-guidelines
sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008). The judgment of the district court is AFFIRMED.

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