United States v. David Santos-Moral , 597 F. App'x 258 ( 2015 )

Case: 14-50705 Document: 00512968069 Page: 1 Date Filed: 03/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50705
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 13, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
DAVID JESUS SANTOS-MORAL,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1190-1
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
David Jesus Santos-Moral was sentenced to a 57-month term of
imprisonment, following his guilty-plea conviction for being illegally present in
the United States following deportation, in violation of 8 U.S.C. § 1326. That
sentence is at the bottom of the advisory Sentencing Guidelines’ sentencing
range. He challenges only the substantive reasonableness of his within-
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50705
Guidelines sentence, asserting it is greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a).
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).
Of significance for the issue presented, there is a rebuttable presumption
of reasonableness to a within-Guidelines sentence. E.g., United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To preserve the challenge for
possible further review, Santos asserts that presumption should not apply
because Guideline § 2L1.2 (the illegal-reentry Guideline) lacks an empirical
basis. As he concedes, however, his argument is foreclosed because our court
has rejected “double-counting” contentions and assertions that the Guideline
lacks an empirical basis. E.g., United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67
(5th Cir. 2009). Additionally, our court has rejected the contention that the
Guideline overstates the seriousness of illegal reentry because it is claimed to
be simply an international-trespass offense. E.g., United States v. Juarez-
Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
At sentencing, Santos discussed his lack of education; the conditions in
his home country; and his return to the United States to find employment and
provide for his family. The court found Santos’ allocution unpersuasive. His
motives for reentry are not sufficient to rebut the above-described presumption
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No. 14-50705
of reasonableness afforded his within-Guidelines sentence. E.g., United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Likewise, defendant’s
mere disagreement with the propriety of a sentence, or with the weight given
to the § 3553(a) factors, does not suffice to rebut that presumption. E.g., United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (citation omitted).
AFFIRMED.
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