USA v. Franklin Centeno-Nunez
UNPUBLISHED OPINION FILED. [11-51273 Affirmed ] Judge: EGJ , Judge: FPB , Judge: JLD Mandate pull date is 11/19/2012 for Appellant Franklin Roberto Centeno-Nunez [11-51273]
Date Filed: 10/29/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
October 29, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
FRANKLIN ROBERTO CENTENO-NUNEZ,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-939-1
Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
Franklin Roberto Centeno-Nunez (Centeno) appeals his conviction of
illegal reentry following removal pursuant to 8 U.S.C. § 1326. He contends that
his sentence of 70 months of imprisonment, which was within the guidelines
sentencing range, was substantively unreasonable. Within his reasonableness
contention, Centeno argues that the plain error standard of review should not
apply despite his failure to object to the reasonableness of his sentence and that
sentences calculated pursuant to the illegal reentry guideline, U.S.S.G. § 2L1.2,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10/29/2012
should not be presumed to be reasonable because that guideline is not
empirically based. As Centeno concedes, those contentions are foreclosed. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (holding that plain
error review applies); United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009) (rejecting empirical basis argument). We also have rejected Centeno’s
argument that the Guidelines overstate the seriousness of illegal reentry
because it is simply an international trespass offense. See United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Next, Centeno argues that a lesser sentence would have served the
purposes of 18 U.S.C. § 3553(a) in light of his age, the commission of his previous
crimes while he had a drinking problem, the lack of any previous illegal reentry
convictions, his understanding that he cannot return to the United States, and
his remorse. The district court emphasized the escalation of Centeno’s prior
offenses from non-violent to violent when rejecting the request for a sentence
below the guidelines range. The district court implicitly rejected Centeno’s
arguments that his age, his remorse, and his intoxication when committing the
assault crime justified a lower sentence.
The district court’s reasoning
implicated Centeno’s history and his possibly violent proclivities, which are
factors § 3553(a) indicates are appropriate to consider. See § 3553(a)(1)&(2)(B)(C). Centeno has not shown that the district court made a clear error of
judgment in balancing the § 3553(a) factors. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). His arguments constitute a disagreement with the
weighing of those factors; he essentially is asking us to reweigh the 3553(a)
factors, which we may not do. See Gall v. United States, 552 U.S. 38, 51 (2007).
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