USA v. Jose Pinedo-Ureno
UNPUBLISHED OPINION FILED. [16-51296 Affirmed ] Judge: CDK , Judge: JWE , Judge: SAH Mandate pull date is 08/15/2017 for Appellant Jose Antonio Pinedo-Ureno [16-51296]
Date Filed: 07/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
July 25, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOSE ANTONIO PINEDO-URENO,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:16-CR-993-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jose Antonio Pinedo-Ureno appeals the within guidelines sentence of 70
months of imprisonment and three years of supervised release imposed by the
district court following his guilty plea conviction for illegal reentry into the
United States. He contends that the sentence is substantively unreasonable
because it is greater than necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a) for the following reasons: the offense is merely an international
trespass; U.S.S.G. § 2L1.2 lacks an empirical basis; the guidelines provision
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 07/25/2017
double-counts his criminal record; the 16-level enhancement undermines
respect for the law and results in more punishment than is just; and it is
greater than necessary to provide adequate deterrence or to protect the public.
He further contends that the sentence does not reflect his personal history and
characteristics, including that he had lived in the United States since he was
16 years of age and he returned to the United States to see and support his
daughter, a United States citizen.
Although Pinedo-Ureno asserts that he should not have had to object to
the reasonableness of the sentence to preserve the issue for appellate review,
he acknowledges that relief on this issue is foreclosed by this court’s precedent
and raises the issue to preserve it for further review. Because he did not object
to the reasonableness of his sentence in the district court, our review is limited
to plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007). 1 Pinedo-Ureno must show a forfeited error that is clear or obvious and
that affected his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If he does so, we have the discretion to correct the error if it
seriously affects the integrity, fairness, or public reputation of the judicial
proceedings. See id.
We have held that whatever discretion Kimbrough v. United States, 552
U.S. 85, 109-10 (2007), gives district court judges to deviate from the
Guidelines, it does not require either district courts or appellate courts to
Generally, we review a post-Booker sentence for reasonableness under an abuse of
discretion standard. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009);
see also United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). When no objection is made
by an appellant at the time the sentence is imposed, however, we will apply a plain error
analysis in our evaluation of the sentence. Peltier, 505 F.3d at 391–92. However, even if we
were to apply the abuse of discretion standard to our review of the district court’s withinguidelines sentence of 70 months of imprisonment and three years of supervised release, we
would conclude that the sentence was substantively reasonable and that the district court
did not abuse its discretion.
Date Filed: 07/25/2017
conduct “a piece-by-piece analysis of the empirical grounding behind each part
of the sentencing guidelines.” United States v. Duarte, 569 F.3d 528, 530 (5th
Cir. 2009); see also Mondragon-Santiago, 564 F.3d at 366-67.
Pinedo-Ureno contends that we should not afford a presumption of
reasonableness to his sentence because § 2L1.2 lacks an empirical basis, he
acknowledges that his argument is foreclosed and raises it to preserve the
argument for further review.
We have rejected the argument that § 2L1.2’s double-counting of a
defendant’s criminal history necessarily renders a sentence unreasonable. See
Duarte, 569 F.3d at 529-31. In addition, we are not persuaded by the argument
that illegal reentry is merely an international trespass and not a serious
offense. See United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
The fact that Pinedo-Ureno returned to the United States to see and support
his daughter and because he had lived in this country since he was 16 years
old are insufficient grounds to rebut the presumption of reasonableness
applicable to his sentence. See United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008). His disagreement with the propriety of the sentence or
the weight given to the § 3553(a) factors by the district court does not suffice
to rebut the presumption of reasonableness applicable to his within guidelines
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); Gomez-Herrera, 523 F.3d at 565-66.
Pinedo-Ureno has failed to show 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. Jenkins, 712 F.3d 209, 214 (5th Cir.
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