USA v. Jose Rocha
UNPUBLISHED OPINION FILED. [11-51081 Affirmed ] Judge: FPB , Judge: CES , Judge: SAH Mandate pull date is 07/19/2012 for Appellant Jose Antonio Salazar Rocha [11-51081]
Date Filed: 06/28/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
June 28, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOSE ANTONIO SALAZAR ROCHA, also known as Jose Salazar-Rocha, also
known as Antonio Gaytan,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-1330-1
Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
Jose Antonio Salazar Rocha (Salazar) appeals from the sentences imposed
by the district court following his guilty-plea convictions of one count of
attempted illegal reentry and one count of fraud and misuse of visas, permits,
and other documents; the district court sentenced him within the applicable
guidelines range to 18 months of imprisonment on each count. He argues that
the sentences imposed are substantively unreasonable.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 06/28/2012
This court reviews sentences for reasonableness by engaging in a
bifurcated review. Gall v. United States, 552 U.S. 38, 51 (2007); United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). First, we must ensure
that the sentencing court committed no significant procedural error. Gall, 552
U.S. at 51. If the district court’s sentencing decision is procedurally sound, we
review the substantive reasonableness of the sentence under an abuse of
discretion standard. Id. Because Salazar’s sentence falls within the applicable
guidelines range, it “is presumptively reasonable.” United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006). However, as he concedes, we review his sentence
only for plain error because he failed to object to it in the district court. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
This court has rejected Salazar’s arguments that sentences determined
under U.S.S.G. § 2L1.2 are unreasonable because § 2L1.2 is not empirically
grounded and because prior convictions may count toward both offense level and
criminal history category calculations. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009). With regard to his contention that the district court
failed to account sufficiently for his particular circumstances in its 18 U.S.C.
§ 3553(a) analysis, he brought these circumstances to the attention of the district
court, and this court recognizes that “the 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). Whether or not we “might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall, 552 U.S. at 51. Finally, as Salazar concedes, his argument
that his inability to participate in a fast-track program creates an unwarranted
sentencing disparity is foreclosed by United States v. Gomez-Herrera, 523 F.3d
554, 562-64 (5th Cir. 2008).
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