United States v. Moreno , 314 F. App'x 739 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 18, 2009
No. 08-50562
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAIME SEGURA MORENO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CR-16-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Jaime Segura Moreno appeals the 57-month sentence imposed following
his guilty plea conviction of illegal reentry by a deported alien, in violation of 8
U.S.C. § 1326. Moreno argues that the appellate presumption of reasonableness
that is normally afforded to sentences that are within the guidelines range is
inapplicable in his case. He also argues that even if the presumption is
employed, his sentence is unreasonable.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50562
This court reviews a district court’s sentencing decisions for
reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). Gall v.
United States, 128 S. Ct. 586, 596-97 (2007); United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). First, we consider whether the sentence is
procedurally sound. Gall, 128 S. Ct. at 597. We then consider whether the
sentence is substantively reasonable, using an abuse-of-discretion standard. Id.A sentence imposed within a properly calculated guidelines range is entitled to
a rebuttable presumption of reasonableness. Rita v. United States, 127 S. Ct.
2456, 2462 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Moreno’s sentence, in part, was based upon a 16-level enhancement set
forth in U.S.S.G. § 2L1.2(b)(1)(A)(vii)(2007), due to a prior conviction for
transporting illegal aliens. Moreno argues that the enactment of § 2L1.2 was not
supported by empirical data or national experience and that in Kimbrough v.
United States, 128 S. Ct. 558 (2007), the Court suggested that the presumption
should not apply in the absence of such data and experience. Kimbrough does
not suggest that the appellate presumption should not apply to guidelines that
do not take into account empirical data and national experience. Moreover, the
appellate presumption’s continued applicability to § 2L1.2 sentences is supported
by this court’s decision in United States v. Campos-Maldonado, 531 F.3d 337,
338-39 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008), which involved a similar
challenge to § 2L1.2. The appellate presumption is therefore applicable in this
case.
Moreno also argues that his guidelines sentence was not reasonable
because application of the guidelines resulted in impermissible double counting
of his prior conviction for transporting illegal aliens, as this single offense was
used both to determine his offense level and his criminal history points. He
further argues that the guidelines range does not reflect his motive for
committing the offense and that the district court’s reliance on the information
in the PSR was an insufficient basis for the top-of-the-range sentence.
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No. 08-50562
As Moreno did not present these arguments in the district court, plain
error review governs. See United States v. Mares, 402 F.3d 511, 513 (5th Cir.
2005); United States v. Green, 324 F.3d at 375, 381 (5th Cir. 2003). To show
plain error, Moreno must show an error that is clear or obvious and that affects
his substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009). If Moreno makes such a showing, this court
has the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.Moreno’s argument regarding impermissible double counting is without
merit. “Double counting is impermissible only where the guidelines at issue
prohibit it.” See United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996).
Rather than prohibiting double counting, the commentary to § 2L1.2 states that
“[a] conviction taken into account under subsection (b)(1) is not excluded from
consideration of whether that conviction receives criminal history points.”
§ 2L1.2, comment. (n.6). This court has upheld double counting under similar
circumstances involving U.S.S.G. § 2K1.2. See United States v. Hawkins, 69
F.3d 11, 14-15 (5th Cir. 1995). Moreno’s remaining arguments fail to establish
that the district court erred. As discussed above, Moreno’s sentence is entitled
to a rebuttable presumption of reasonableness. Rita, 127 S. Ct. at 2462; Alonzo,
435 F.3d at 554. The district court explicitly stated that it was considering the
§ 3553(a) factors, it relied on unchallenged facts set forth in the PSR to
determine where within the guidelines range the sentence should fall, it
considered the arguments that were presented at the sentencing hearing, and
it specifically determined that this case was “out of the realm of being a simple
illegal reentry case.” Given the deference that is due to such a sentence, Moreno
has failed to rebut the presumption of reasonableness that is applied in this
context. See Campos-Maldonado, 531 F.3d at 338.
The judgment of the district court is AFFIRMED.
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