USA v. Ariel Vallejo-Gonzalez

Filing

UNPUBLISHED OPINION FILED. [13-50371 Affirmed ] Judge: EGJ , Judge: HRD , Judge: JWE Mandate pull date is 01/09/2014 for Appellant Ariel Vallejo-Gonzalez [13-50371]

Case: 13-50371

Document: 00512476414

Page: 1

Date Filed: 12/19/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50371
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 19, 2013

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
ARIEL VALLEJO-GONZALEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-1255-1
Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
Ariel Vallejo-Gonzalez appeals the sentence imposed for his conviction
for illegal reentry into the United States. He contends that his sentence is
substantively unreasonable because it was greater than necessary to
accomplish the sentencing goals under 18 U.S.C. § 3553(a). The district court
sentenced him within his guidelines range to 32 months of imprisonment and
three years of supervised release.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50371

Document: 00512476414

Page: 2

Date Filed: 12/19/2013

No. 13-50371
The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Because Vallejo-Gonzalez’s sentence was within his advisory guidelines range,
his sentence is presumptively reasonable. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008). Vallejo-Gonzalez wishes to preserve for
further review the argument that the presumption of reasonableness should
not apply to within-guidelines sentences calculated under U.S.S.G. § 2L1.2
because § 2L1.2 lacks an empirical basis.

As conceded by him, such an

argument is foreclosed by our precedent. See United States v. Rodriguez, 660
F.3d 231, 232-33 (5th Cir. 2011).
Vallejo-Gonzalez argues that his sentence was greater than necessary
because § 2L1.2 lacks an empirical basis and gives heavy weight to a
defendant’s criminal history through enhancements, such as his crime-ofviolence enhancement, that are based on prior convictions. He notes that the
conviction underlying his crime-of-violence enhancement was not assessed any
criminal history points because it occurred too long ago. He further contends
that the guidelines range overstated the seriousness of his instant illegal
reentry offense and failed to reflect his personal history and characteristics.
The district court listened to Vallejo-Gonzalez’s arguments for a lesser
sentence but found that a 32-month sentence was appropriate.

“[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.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Vallejo-Gonzalez has
not shown that his sentence was an abuse of discretion. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); Gomez-Herrera, 523 F.3d at 56566.
AFFIRMED.

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