USA v. Luis Ferrufino-Rodriguez

Filing

UNPUBLISHED OPINION FILED. [14-50365 Affirmed ] Judge: CDK , Judge: EGJ , Judge: CH. Mandate pull date is 01/05/2015 for Appellant Luis Alonso Ferrufino-Rodriguez [14-50365]

Case: 14-50365

Document: 00512869314

Page: 1

Date Filed: 12/15/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50365
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 15, 2014

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
LUIS ALONSO FERRUFINO-RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-906-1
Before KING, JOLLY and HAYNES, Circuit Judges.
PER CURIAM: *
Luis Alonso Ferrufino-Rodriguez (Ferrufino) was sentenced to a 52month 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) because the Sentencing Guidelines
placed undue weight on his single prior felony offense.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50365

Document: 00512869314

Page: 2

Date Filed: 12/15/2014

No. 14-50365
We review Ferrufino’s challenge to the substantive reasonableness of his
sentence for abuse of discretion, see Gall v. United States, 552 U.S. 38, 49-51
(2007), and apply a rebuttable presumption of reasonableness to the withinguidelines sentence, see United States v. Mondragon-Santiago, 564 F.3d 357,
360 (5th Cir. 2009). For purposes of preserving the issue for possible further
review, Ferrufino argues that the presumption of reasonableness should not
apply because the illegal reentry Guideline lacks an empirical basis.

As

Ferrufino 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 36667.
We have rejected the argument that double and triple counting
necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31;
United States v. Palma-Palma, 551 F. App’x 220, 221 (5th Cir.), cert. denied,
134 S. Ct. 2154 (2014). Moreover, Ferrufino has not shown that his sentence
does not account for a 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.

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