United States v. Everardo Lopez-Porcayo , 616 F. App'x 160 ( 2015 )

Case: 14-51275 Document: 00513200726 Page: 1 Date Filed: 09/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-51275 FILED
Summary Calendar September 21, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EVERARDO LOPEZ-PORCAYO, also known as Everado Lopez, also known as
Everardo Porcayo, also known as Everardo Porcayo-Lopez, also known as
Borracho,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:14-CR-310
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Everardo Lopez-Porcayo (Lopez) appeals the 41-month, within
guidelines sentence imposed following his guilty plea conviction of being
unlawfully present in the United States after having been previously removed.
He argues that the sentence is substantively unreasonable because it is greater
than necessary to achieve the sentencing goals set forth at 18 U.S.C. § 3553(a).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51275
He contends that the application of U.S.S.G. § 2L1.2 resulted in an
unreasonable sentence. He also contends that the district court failed to take
into account the fact that he has lived in the United States since he was 12
years old and faces a violent and uncertain future if removed from the United
States, that he has changed his life and become a devoted family man, that his
motive for returning to the United States was to be with his family, and that
the district court may have been influenced by information in the presentence
report indicating that he was in a gang.
We review sentences for reasonableness in light of the § 3553(a)
sentencing factors. United States v. Mares, 402 F.3d 511, 518-20 (5th Cir.
2005). Our review of the substantive reasonableness of a sentence is for abuse
of discretion. United States v. Delgado-Martinez, 564 F.3d 750, 751-53 (5th
Cir. 2009). Although Lopez did not present to the district court all of the
arguments he raises on appeal, we need not determine whether plain error
review applies because his arguments fail under the abuse-of-discretion
standard. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
When, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is presumptively reasonable. United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To rebut this presumption,
Lopez must show “that the sentence does not account for a factor that should
receive significant weight, it gives significant weight to an irrelevant or
improper factor, or it represents a clear error of judgment in balancing
sentencing factors.” Id.Lopez’s arguments are insufficient to demonstrate that the district court
failed to account for a sentencing factor that should have been given significant
weight, gave significant weight to an irrelevant or improper factor, or that the
sentence imposed represents a clear error of judgment in balancing the
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No. 14-51275
sentencing factors. See id. In essence, Lopez’s arguments amount to a mere
dissatisfaction with the district court’s weighing of the § 3553(a) factors, and
such is insufficient to rebut the presumption of reasonableness that attaches
to his within guidelines sentence. See United States v. Ruiz, 621 F.3d 390, 398
(5th Cir. 2010).
We AFFIRM.
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