USA v. Luis Ferrel Ibarra

Filing

UNPUBLISHED OPINION FILED. [11-50797 Affirmed] Judge: JLD , Judge: EBC , Judge: PRO. Mandate pull date is 07/16/2012 for Appellant Luis Ferrel Ibarra [11-50797]

Case: 11-50797

Document: 00511898095

Page: 1

Date Filed: 06/25/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-50797
Summary Calendar

June 25, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
LUIS FERREL IBARRA,
Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-851-1

Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Luis Ferrel Ibarra (Ferrel) appeals the 46-month sentence of
imprisonment imposed following his guilty-plea conviction for illegal reentry
after removal. Ferrel argues that his sentence, which was at the low end of the
calculated guidelines range, was unreasonable because it was greater than
necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a).

In

particular, he argues that the guidelines range failed to account for his strong
family ties to the United States, the fact that his age makes him less likely to
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50797

Document: 00511898095

Page: 2

Date Filed: 06/25/2012

No. 11-50797
recidivate, and the likelihood that he will not reenter now that he is aware of the
severe punishment for illegal reentry.

Ferrel also argues that his within

guidelines sentence is not entitled to a presumption of reasonableness because
U.S.S.G. § 2L1.2, which applies to illegal reentry convictions, is not empirically
supported.
The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Because Ferrel’s
sentence was within the advisory guidelines range, his sentence is
presumptively reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). Ferrel challenges the presumption of reasonableness applied to his
sentence, but he acknowledges the issue is foreclosed and raises it to preserve
the issue for further review. See United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009); United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008).
The district court listened to Ferrel’s arguments in mitigation at the
sentencing hearing and concluded that a sentence outside of the guidelines range
was not warranted. In particular, the district court expressed concern over
Ferrel’s criminal history and the fact that he had returned not long after his last
removal, which had not resulted in a criminal prosecution. “[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.” Campos-Maldonado, 531 F.3d
at 339. Ferrel has not shown sufficient reason for this court to disturb the
presumption of reasonableness applicable to his sentence. See Cooks, 589 F.3d
at 186.
Accordingly, the judgment of the district court is AFFIRMED.

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