USA v. Alberto Vasquez-Diaz

Filing

UNPUBLISHED OPINION FILED. [13-51185 Affirmed ] Judge: TMR , Judge: JLD , Judge: LHS Mandate pull date is 04/08/2015 for Appellant Alberto Vasquez-Diaz [13-51185]

Case: 13-51185

Document: 00512973510

Page: 1

Date Filed: 03/18/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51185
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 18, 2015

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
ALBERTO VASQUEZ-DIAZ, also known as Alberto Vasquez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:13-CR-693-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Alberto Vasquez-Diaz appeals the 57-month sentence imposed following
his guilty plea conviction for illegal reentry following prior removal. He argues
that his sentence, which is within the applicable Guidelines range, is greater
than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). VasquezDiaz contests the application of U.S.S.G. § 2L1.2 on the ground that it is not
empirically based and results in convictions being double-counted even if the

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51185

Document: 00512973510

Page: 2

Date Filed: 03/18/2015

No. 13-51185
conviction is, like his, remote. He further asserts that the Guidelines do not
account for the nonviolent nature of his offense, which he maintains is an
international trespass. Vasquez-Diaz also argues that the district court did
not account for his personal history and the circumstances of the offense.
Vasquez-Diaz did not object to the reasonableness of his sentence. Thus,
our review is for plain error. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). Even under the ordinary standard of review, however, he has
not shown that his sentence was unreasonable.
We have rejected Vasquez-Diaz’s contention that a within-Guidelines
sentence is unreasonable because Section 2L1.2 lacks an empirical basis and
double-counts prior convictions. See United States v. Duarte, 569 F.3d 528,
529-30 (5th Cir. 2009). Moreover, Vasquez-Diaz’s sentence is not rendered
unreasonable because of the alleged remoteness of his prior conviction. See
United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011). Also, we are not
persuaded by the contention that the Sentencing Guidelines do not take into
account the nonviolent nature of an illegal reentry offense. See United States
v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
With regard to Vasquez-Diaz’s claim that his sentence did not reflect his
personal circumstances, the district court considered his allocution in which he
addressed his personal history and also reviewed and adopted the presentence
report, which set forth his background and the circumstances of the offense.
The district court found that the sentence imposed was proper, and we must
defer to the district court’s sentencing decision. See Gall v. United States, 552
U.S. 38, 49-51 (2007). Vasquez-Diaz has not demonstrated that the district
court’s presumptively reasonable choice of sentence was incorrect. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
AFFIRMED.

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