USA v. Jose Perez-Perez

Filing

UNPUBLISHED OPINION FILED. [14-50690 Affirmed ] Judge: JES , Judge: RHB , Judge: ECP Mandate pull date is 03/24/2015 for Appellant Jose Luis Perez-Perez [14-50690]

Case: 14-50690

Document: 00512955335

Page: 1

Date Filed: 03/03/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 14-50690
Summary Calendar

FILED
March 3, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE LUIS PEREZ-PEREZ,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1370-1
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Jose Luis Perez-Perez challenges his 27-month sentence, imposed for his
conviction for illegal reentry following deportation, in violation of 8 U.S.C.
§ 1326. The sentence falls within the advisory sentencing range based on the
Sentencing Guidelines.
Perez contests the substantive reasonableness of his sentence, claiming
it is greater than necessary to accomplish the sentencing objectives of 18 U.S.C.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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Date Filed: 03/03/2015

No. 14-50690
§ 3553(a). Along that line, he claims the court: failed to account for his
personal circumstances and those for his offense, maintaining he returned to
the United States to earn income for his family in Mexico; and erred in
applying Guideline § 2L1.2 (illegal-reentry Guideline) because it double-counts
his prior conviction, and fails to account for the nonviolent nature of his
offense, which, he classes as merely an “international trespass.”
Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Although Perez challenges the application of the presumption of
reasonableness as applied to his within-Guidelines sentence under § 2L1.2, he
acknowledges the issue is foreclosed and raises it only to preserve it for possible
future review. E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 366–
367 (5th Cir. 2009). Our court has likewise rejected his “double-counting”
claim, United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009), and
“international trespass” claim, United States v. Juarez-Duarte, 513 F.3d 204,
212 (5th Cir. 2008).
After considering the reasons Perez advanced for a sentence below the
advisory Guidelines sentencing range, the court found a sentence within that
range was appropriate. His contentions amount to a disagreement with the
court’s weighing of the § 3553(a) sentencing factors, and, therefore, do not

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rebut the presumption of reasonableness. E.g., United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
AFFIRMED.

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