USA v. Jose Bonilla-Rivera

Filing

UNPUBLISHED OPINION FILED. [13-51158 Affirmed] Judge: FPB , Judge: LHS , Judge: GJC. Mandate pull date is 09/08/2014 for Appellant Jose Bonilla-Rivera [13-51158]

Case: 13-51158

Document: 00512736385

Page: 1

Date Filed: 08/18/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51158
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 18, 2014

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
JOSE BONILLA-RIVERA, also known as Jose Bonilla, also known as Jose
David Bonilla, also known as Misael Hernandez, also known as Jose David
Rivera, also known as Jose David Bonilla-Rivera,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CR-424-1
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Jose Bonilla-Rivera was sentenced to a 37-month term of imprisonment
following his guilty plea to illegal reentry of a deported alien. See 8 U.S.C.
§ 1326. He challenges the substantive reasonableness of his sentence, arguing
that it is greater than necessary to satisfy the goals of 18 U.S.C. § 3553(a). We
review his challenge to the substantive reasonableness of his sentence for
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51158

Document: 00512736385

Page: 2

Date Filed: 08/18/2014

No. 13-51158
abuse of discretion, see Gall v. United States, 552 U.S. 38, 49-51 (2007), and
apply a rebuttable presumption of reasonableness to the within-guidelines
sentence, see United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.
2009).
In reliance on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007),
and for purposes of preserving the issue for possible further review, BonillaRivera argues that the presumption of reasonableness should not apply
because the illegal reentry Guideline lacks an empirical basis. As BonillaRivera concedes, his argument is foreclosed. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67.
We have consistently rejected Bonilla-Rivera’s “double counting”
argument and his argument that U.S.S.G. § 2L1.2 results in excessive
sentences because it is not empirically based. See Duarte, 569 F.3d at 529-31.
We also have rejected the “international trespass” argument that BonillaRivera asserts. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006).
Bonilla-Rivera has not shown that his sentence does not account for a
sentencing factor that should receive significant weight, gives significant
weight to an irrelevant or improper factor, or represents a clear error of
judgment in balancing sentencing factors. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Mere disagreement with the propriety of his sentence
or with the weight given to § 3553(a) factors does not suffice to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). The judgment of
the district court is AFFIRMED.

2