USA v. Jose Santos-Quinino-Salome

Filing

UNPUBLISHED OPINION FILED. [14-51206 Affirmed ] Judge: TMR , Judge: JLD , Judge: LHS. Mandate pull date is 07/30/2015 for Appellant Jose Santos-Quinino-Salome [14-51206]

Case: 14-51206

Document: 00513109917

Page: 1

Date Filed: 07/09/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-51206
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 9, 2015

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
JOSE SANTOS-QUININO-SALOME, also known as Santos Quirino, also
known as Jose Santos Quinino-Salome,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:14-CR-237-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jose Santos-Quinino-Salome (Quinino) appeals the 30-month withinguidelines sentence he received following his guilty plea to illegal reentry.
Quinino argues that his sentence is greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a). He specifically contends that the
guidelines sentencing range was too severe because the district court failed to

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51206
consider that his reentry offense was, at bottom, a mere trespass and did not
consider his benign motives for returning. Quinino further contends that his
sentence is not entitled to a presumption of reasonableness because the illegal
reentry Guideline, U.S.S.G. § 2L1.2, is not empirically based.
Conceding that he failed to object in the district court, Quinino asserts
that plain error review should not apply because no objection is required to
preserve the issue of the substantive reasonableness of a sentence.

He

acknowledges, however, that the issue is foreclosed, and he raises it to preserve
for further review.

We have held that a defendant’s failure to object at

sentencing to the reasonableness of his sentence triggers plain error review.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Even if we
reviewed for an abuse of discretion, however, Quinino’s arguments are
unavailing. See Gall v. United States, 552 U.S. 38, 51 (2007) (reviewing the
substantive reasonableness of a sentence for abuse of discretion).
As he concedes, Quinino’s empirical data argument is foreclosed by this
court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009); United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
We have rejected the argument that a guidelines sentence under § 2L1.2 is
unreasonable because illegal reentry is a mere trespass offense. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).

Furthermore,

Quinino’s sentence, which is at the bottom of the applicable guidelines range,
is presumed reasonable. See United States v. Rashad, 687 F.3d 637, 644 (5th
Cir. 2012). His general disagreement with the propriety of his sentence and
the district court’s weighing of the § 3553(a) factors is insufficient to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).

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Quinino has not demonstrated that the district court erred, much less
plainly erred, by sentencing him to a within-guidelines sentence of 30 months
in prison. See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92. Consequently,
the judgment of the district court is AFFIRMED.

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