USA v. Adolfo Reye


UNPUBLISHED OPINION FILED. [12-51278 Affirmed ] Judge: FPB , Judge: EBC , Judge: PRO Mandate pull date is 09/20/2013 for Appellant Adolfo Reyes [12-51278]

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Case: 12-51278 Document: 00512358807 Page: 1 Date Filed: 08/30/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-51278 Summary Calendar August 30, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ADOLFO REYES, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:12-CR-800-1 Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Adolfo Reyes pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to 34 months of imprisonment and three years of supervised release. Reyes challenges the substantive reasonableness of his sentence, arguing that his sentence is unreasonable because it is greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a). He argues that the guidelines range overstated the seriousness of the offense, which was essentially a trespass. He contends that his 34-month sentence overstated his * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51278 Document: 00512358807 Page: 2 Date Filed: 08/30/2013 No. 12-51278 criminal history, his risk of recidivism, his danger to the public, and the seriousness of his offense, and that the district court misweighed the § 3553 factors. We review sentences for substantive reasonableness, in light of the § 3553(a) factors, under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 49-51 (2007). A within-guidelines sentence is entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). We have rejected the argument that illegal reentry is merely a trespass offense that is treated too harshly under U.S.S.G. § 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). The district court considered Reyes’s personal history and characteristics and the other statutory sentencing factors in § 3553(a), in particular Reyes’s criminal history of a conviction for attempted robbery, numerous DUI offenses, and a resisting arrest offense, and determined that he was a danger to the public. Reyes’s disagreement with the district court’s weighing of the § 3553(a) factors is insufficient to rebut the presumption of reasonableness that attaches to a within-guidelines sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Reyes has not demonstrated that the district court abused its discretion by sentencing him to a within-guidelines sentences of 34 months. See Gall, 552 U.S. at 51. The judgment of the district court is AFFIRMED. 2

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