USA v. Saul Marquez-Ponce
UNPUBLISHED OPINION FILED. [11-50191 Affirmed ] Judge: JES , Judge: RHB , Judge: LHS Mandate pull date is 01/25/2012 for Appellant Saul Marquez-Ponce [11-50191]
Date Filed: 01/04/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
January 4, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
Plaintiff - Appellee
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-2701-1
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
Following his guilty-plea conviction for illegal reentry, Saul MarquezPonce was sentenced, inter alia, to 70-months’ imprisonment, the bottom of the
advisory Guidelines sentencing range.
Marquez contends his sentence is
Post-Booker, the Sentencing Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard.
Gall v. United States, 128 S. Ct. 586, 596 (2007). Marquez’s within-Guidelines*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 01/04/2012
range sentence is entitled to a presumption of reasonableness. United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). As Marquez concedes, his contention
that the presumption does not apply because Guideline § 2L1.2 (unlawfully
entering or remaining in United States) is flawed is foreclosed. United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
Marquez contends the district court failed to consider: he was assimilated
to life in the United States; and, he was driven to return by the violence in
Chihuahua, Mexico. The district court specifically rejected those assertions after
hearing Marquez present them. There is no reason to conclude the sentence is
unreasonable on that basis.
Marquez next maintains his sentence is not reasonable because Guideline
§ 2L1.2 is not the product of the Sentencing Commission’s use of empirical data
and national experience. To the extent that Kimbrough v. United States, 552
U.S. 85 (2007), gives district courts discretion to deviate from the Guidelines
based on such considerations, it does not require their doing so. United States
v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009).
Marquez also maintains Guideline § 2L1.2 double-counts prior convictions.
The use of a conviction for determining both the offense level and criminal
history score does not necessarily render a sentence unreasonable. Id.
Finally, Marquez contends the lack of a fast-track program in the Western
District of Texas results in an unwarranted sentencing disparity. But, as
Marquez concedes, that argument is foreclosed. United States v. Gomez-Herrera,
523 F.3d 554, 562-64 (5th Cir. 2008).
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