United States v. Jose Alvarez , 495 F. App'x 479 ( 2012 )

Case: 12-50037 Document: 00512033156 Page: 1 Date Filed: 10/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2012
No. 12-50037
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE ALVAREZ ALVAREZ, also known as Jose Alvarez-Romero, also known
as Jose Luis Alvarez-Romero,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-2004-1
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jose Alvarez Alvarez appeals his 24-month sentence for illegal reentry
following deportation and falsely representing himself to be a citizen of the
United States. He contends: the sentence is substantively unreasonable
because it is greater than necessary to accomplish the sentencing goals of 18
U.S.C. § 3553(a); and the illegal reentry Sentencing Guideline, § 2L1.2, is flawed
because: it gives too much weight to a defendant’s prior convictions; it
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50037 Document: 00512033156 Page: 2 Date Filed: 10/25/2012
No. 12-50037
overstates the seriousness of his illegal reentry offense, which he characterizes
as nothing more than an international trespass; and it did not account for his
personal history and circumstances.
Although post-Booker, the Sentencing 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 Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). Alvarez
does not claim procedural error. A discretionary sentence imposed, as here,
within a properly-calculated Guidelines range is presumptively reasonable.
United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011).
After considering Alvarez’ assertions at sentencing, the district court
determined a 24-month sentence, the lowest in the applicable advisory
Guidelines sentencing range, was appropriate. “[T]he sentencing judge is in a
superior position to find facts and judge their import under § 3553(a) with
respect to a particular defendant”. United States v. Campos-Maldonado, 531
F.3d 337, 339 (5th Cir. 2008). Alvarez’ contentions concerning the weight given
his prior criminal convictions and his family history and circumstances fail to
rebut the above-referenced presumption that his sentence is substantively
reasonable. E.g., United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
2008). Further, his assertion that his sentence is unreasonable because his
offense is nothing more than an “international trespass” is foreclosed by our
court’s precedent. E.g., United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006).
AFFIRMED.
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