USA v. Marco Romero-Acosta

Filing

UNPUBLISHED OPINION FILED. [10-50754 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 06/02/2011 for Appellant Marco Antonio Romero-Acosta [10-50754]

Case: 10-50754 Document: 00511475666 Page: 1 Date Filed: 05/12/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 10-50754
Summary Calendar

May 12, 2011
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCO ANTONIO ROMERO-ACOSTA,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:10-CR-144

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Marco Antonio Romero-Acosta appeals the 70-month within-Guidelines
sentence imposed following his guilty plea to illegal reentry in violation of 8
U.S.C. § 1326.

He argues that his sentence is substantively unreasonable

because it was greater than necessary to meet the goals of 18 U.S.C. § 3553(a).
He points out that U.S.S.G. § 2L1.2 is not empirically based and, therefore, there
is no reasoned basis for the double counting of a defendant’s criminal record in
establishing his Guidelines range. Romero asserts that the presumption of
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50754 Document: 00511475666 Page: 2 Date Filed: 05/12/2011
No. 10-50754
reasonableness should not be applied to a sentence calculated under this
Guideline. He further urges that the Guidelines failed to account for his family
history, including that Romero lived in the United States since he was fiveyears-old and has several children who are U.S. citizens.
Because Romero did not object to the reasonableness of the sentence at the
sentencing hearing, review is for plain error only.1 To show plain error, the
appellant must show a forfeited error that is clear or obvious and that affects his
substantial rights.2 If the appellant makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.3
This court has previously rejected Romero’s argument that his sentence
is unreasonable because the illegal reentry Guideline is not empirically based
and results in the double counting of his criminal history.4 Romero’s contention
that his sentence is unreasonable because his reentry offense was a mere
trespass offense has also been rejected by this court.5 Further, the court has
determined that a sentence calculated under § 2L1.2 is not unreasonable simply
because the alien entered the country to find work, lived in the United States for
most of his life, or reentered to be with his family.6
“[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.”7 When the

1

See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

2

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

3

Id.

4

See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct.
378 (2009).
5

See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).

6

See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).

7

United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).

2

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No. 10-50754
district court imposes a sentence within a properly calculated Guidelines range
and gives proper weight to the Guidelines and § 3553(a) factors, this court gives
“great deference to that sentence and will infer that the judge has considered all
the factors for a fair sentence.”8 Here, the district court considered Romero’s
arguments and rejected them, noting that Romero had an extensive criminal
history and that his conduct warranted a Guideline sentence to deter his
criminal behavior and to protect the public from his drug-trafficking activities.9
Romero has failed to overcome the presumption of reasonableness that attaches
to a within-Guidelines sentence and has not shown reversible plain error on the
part of the district court in imposing sentence.10 The sentence is AFFIRMED.

8

Id. at 338 (internal quotation marks and citation omitted).

9

See Gomez-Herrera, 523 F.3d at 565-66.

10

See Puckett, 129 S. Ct. at 1429.

3