USA v. Cesar Arellano-Canchola


UNPUBLISHED OPINION FILED. [10-50666 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 04/13/2011 for Appellant Cesar Arellano-Canchola [10-50666]

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USA v. Cesar Arellano-Canchola Case: 10-50666 Document: 00511421631 Page: 1 Date Filed: 03/23/2011 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-50666 Summary Calendar March 23, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CESAR ARELLANO-CANCHOLA, also known as Cesar Arellano-Castillo, also known as Cesar Castillo-Arellano, Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 5:09-CR-580-1 Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Cesar Arellano-Canchola (Arellano) appeals the sentence imposed following his guilty plea to illegal reentry. Arellano argues that his withinGuidelines sentence is substantively unreasonable because U.S.S.G. 2L1.2 is not empirically based and because the Guideline failed to take into account the characteristics of the robbery offense for which he garnered the 16-level 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50666 Document: 00511421631 Page: 2 Date Filed: 03/23/2011 No. 10-50666 enhancement, the circumstances surrounding his criminal history, or his plan to return to Mexico. We reject Arellano's contention that the within-Guidelines sentence was substantively unreasonable. "[T]he sentencing judge is in a superior position to find facts and judge their import under 3553(a) with respect to a particular defendant." United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). The district court considered and rejected Arellano's arguments, and Arellano's mere disagreement with the propriety of the sentence imposed does not suffice to rebut the presumption of reasonableness that attaches to a within-Guidelines sentence. See id; cf. United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Arellano correctly concedes that United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009), forecloses his argument that the presumption of reasonableness should not apply to his sentence because 2L1.2 is not empirically based. He raises it solely to preserve its further review. AFFIRMED. 2

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