USA v. Eduardo Avile

Filing

UNPUBLISHED OPINION FILED. [14-50967 Affirmed ] Judge: JES , Judge: JLW , Judge: JWE Mandate pull date is 04/23/2015 for Appellant Eduardo Jose Aviles [14-50967]

Case: 14-50967

Document: 00512991891

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Date Filed: 04/02/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50967
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 2, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDUARDO JOSE AVILES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1444
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *

Eduardo Jose Aviles appeals the within-guidelines, 65-month prison
sentence imposed following his guilty plea conviction for illegal reentry. He
contends that his sentence is substantively unreasonable and greater than
necessary to satisfy the 18 U.S.C. § 3553(a) factors. Specifically, Aviles argues
that his sentence does not account for his personal circumstances, history, and
characteristics, particularly his benign motives for illegally reentering 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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No. 14-50967
country and his intent to relocate to Nicaragua with his family. He challenges
the illegal reentry guideline, arguing that it double counts a person’s criminal
history and lacks an empirical basis. He asserts that the advisory guidelines
range overstated the seriousness of his offense and contends that his withinguidelines sentence should not be afforded a presumption of reasonableness.
We review the substantive reasonableness of a sentence for an abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The district court
was “in a superior position to find facts and judge their import under § 3553(a).”
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). The
district court acknowledged Aviles’s mitigating arguments but concluded that
a 65-month sentence was appropriate.

Aviles has failed to rebut the

presumption of reasonableness that we apply to his within-guidelines
sentence.

See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009);

Campos-Maldonado, 531 F.3d at 338.
Furthermore, we have rejected substantive reasonableness challenges
based on the alleged lack of seriousness of an illegal reentry offense. See
United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008); United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). We have also rejected
the argument that U.S.S.G. § 2L1.2’s double-counting of a prior conviction in
the calculation of a defendant’s offense level and criminal history score
necessarily renders a sentence unreasonable. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009). Finally, as Aviles concedes, his argument
that the presumption of reasonableness should not be applied to his withinguidelines sentence is foreclosed. See id. at 530-31 (holding that Kimbrough v.
United States, 552 U.S. 85 (2007), does not question the appellate presumption
of reasonableness and does not require district or appellate courts to
independently analyze the empirical grounding behind each individual

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guideline); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009).
To the extent that Aviles argues that the district court erred in imposing
a supervised release term, his claim is unavailing.

The commentary to

U.S.S.G. § 5D1.1(c) states that courts should consider imposing a supervised
release term if it is determined that such a term “would provide an added
measure of deterrence and protection” under the facts and circumstances.
§ 5D1.1, comment. (n.5); see also United States v. Dominguez-Alvarado, 695
F.3d 324, 329 (5th Cir. 2012). The district court expressly mentioned § 5D1.1(c)
and found that a supervised release term was required to provide an added
measure of deterrence. Accordingly, imposition of the term did not constitute
error, plain or otherwise. See Dominguez-Alvarado, 695 F.3d at 329-30.
The judgment of the district court is AFFIRMED.

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