USA v. Gilberto Marquez-Calzadilla

Filing

UNPUBLISHED OPINION FILED. [13-51035 Affirmed ] Judge: CDK , Judge: EGJ , Judge: CH. Mandate pull date is 09/02/2014 for Appellant Gilberto Marquez-Calzadilla [13-51035]

Case: 13-51035

Document: 00512730037

Page: 1

Date Filed: 08/12/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51035
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 12, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.

GILBERTO MARQUEZ-CALZADILLA, also known as Gilberto Marquez
Calzadillo,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-1258-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Gilberto Marquez-Calzadilla (Marquez) appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. Marquez argues that his sentence is substantively
unreasonable because it is greater than necessary to meet the sentencing goals
of 18 U.S.C. § 3553(a). He maintains that his within-guidelines range sentence

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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Document: 00512730037

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No. 13-51035
should not be considered presumptively reasonable because the Guideline
under which he was sentenced, U.S.S.G. § 2L1.2, is not empirically based, but
he acknowledges that this argument is foreclosed.

He asserts that his

guidelines range was greater than necessary because § 2L1.2 double counted
his prior convictions and because his offense was a mere trespass. He contends
that the sentence failed to account for his personal history and characteristics
because it did not reflect his strong ties to the United States and the threats to
him in Mexico.
In the district court, Marquez did not object to the substantive
reasonableness of the sentence. Marquez argues that such an objection is not
required to preserve the substantive reasonableness of a sentence for review,
but he acknowledges that this argument is foreclosed by circuit precedent and
raises the issue to preserve it for further review. As Marquez did not object in
the district court, we review the substantive reasonableness of the sentence for
plain error only. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007). Under the plain error standard, Marquez must show a clear or obvious
forfeited error that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009).

If Marquez makes such a showing, we have

discretion to correct the error but should do so only if the error seriously affects
the fairness, integrity, or public reputation of the proceedings. See id.
“[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). As Marquez concedes, his argument that his within-guidelines
range sentence should not be considered presumptively reasonable because
§ 2L1.2 is not empirically based is foreclosed. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009).

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The district court considered Marquez’s request for lenience, and it
determined that a sentence within the guidelines range was appropriate. The
international trespass and the double counting of prior convictions arguments
that Marquez raises have both been previously raised in this court without
success. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006);
Duarte, 569 F.3d at 529-31. As Marquez was sentenced within the guidelines
range, the sentence is entitled to a presumption of reasonableness, and
Marquez has not shown sufficient reason for us to disturb that presumption.
See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
Considering the totality of the circumstances, as we must, see Gall v. United
States, 552 U.S. 38, 51 (2007), Marquez has not shown that the sentence was
unreasonable, much less plainly erroneous. See Rita v. United States, 551 U.S.
338, 359-60 (2007); Peltier, 505 F.3d at 392-94.
AFFIRMED.

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