United States v. Antonio Duran-Olvera , 558 F. App'x 476 ( 2014 )

Case: 13-50843 Document: 00512564059 Page: 1 Date Filed: 03/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50843 FILED
Summary Calendar March 18, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTONIO DURAN-OLVERA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-329-1
Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
Antonio Duran-Olvera appeals the within-guidelines, 46-month
sentence imposed for his guilty plea conviction of illegal reentry. He contends
that his sentence is substantively unreasonable because it is greater than
necessary to satisfy the 18 U.S.C. § 3553(a) factors.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-50843 Document: 00512564059 Page: 2 Date Filed: 03/18/2014
No. 13-50843
We review the substantive reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). “A discretionary
sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). “The presumption is rebutted only upon a showing
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.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Duran-Olvera’s arguments that his sentence is substantively
unreasonable because U.S.S.G. § 2L1.2 lacks an empirical basis, double-
counted his prior conviction in the calculation of the offense level and criminal
history score, and overstates the seriousness of illegal reentry are unavailing.
See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States
v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008); United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir. 2006). The district court was aware of the
impact of Duran-Olvera’s prior conviction on the calculation of the guidelines
range and his other mitigating factors. However, the district court imposed a
sentence at the bottom of the guidelines range because Duran-Olvera evinced
a lack of respect for the law by illegally reentering the United States shortly
after he had been removed. Duran-Olvera has failed to show that the district
court did not consider a factor that should have received significant weight,
gave significant weight to a factor that it should not have so weighted, or made
a clear error of judgment when it balanced the relevant factors. Cooks, 589
F.3d at 186. He has thus failed to rebut the presumption of reasonableness
that we apply to his within-guidelines sentence. See Campos-Maldonado, 531
F.3d at 338.
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Case: 13-50843 Document: 00512564059 Page: 3 Date Filed: 03/18/2014
No. 13-50843
As Duran-Olvera concedes, his argument that the presumption of
reasonableness should not be applied to his sentence because § 2L1.2 lacks an
empirical basis is foreclosed. See Duarte, 569 F.3d at 530-31; United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
The judgment of the district court is AFFIRMED.
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