United States v. Victor Lopez , 461 F. App'x 372 ( 2012 )

Case: 11-20314 Document: 00511730300 Page: 1 Date Filed: 01/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 19, 2012
No. 11-20314
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR MANUEL AVILA LOPEZ, also known as Victor Manuel Avila, also
known as Victor Manuel Avila-Lopez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-797-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Victor Manuel Avila Lopez appeals his 30-month below-guidelines
sentence for his illegal reentry into the United States after being deported for an
aggravated felony conviction. Avila Lopez argues that his sentence is
substantively unreasonable because the district court did not properly balance
the 18 U.S.C. § 3553(a) sentencing factors to give the proper weight to such
factors as the remoteness of his prior voluntary manslaughter conviction, his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20314 Document: 00511730300 Page: 2 Date Filed: 01/19/2012
No. 11-20314
prior addiction to drugs and alcohol, and his efforts to rehabilitate his life. The
Government has filed a motion for summary affirmance or, in the alternative,
an extension of time to file a brief, which Avila Lopez opposes.
After determining that a sentence is procedurally reasonable, we review
the substantive reasonableness of the sentence imposed for an abuse of
discretion.1 Like within-guidelines sentences,2 below-guidelines sentences are
presumed to be reasonable.3
Avila Lopez has not rebutted the presumption of reasonableness attached
to his below-guidelines sentence. He has not demonstrated that his sentence
fails to take into account a factor that should receive significant weight, gives
significant weight to an irrelevant or improper factor, or represents a clear error
of judgment in balancing the sentencing factors.4
Contrary to Avila Lopez’s assertions, the district court did account for his
alcohol and drug addiction, the age of his prior conviction, and his “extraordinary
rehabilitation.” In particular, before imposing a below-guidelines sentence, the
district court expressly noted that it had considered all of Avila Lopez’s reasons
for requesting a downward variance. In the written Statement of Reasons, the
district court explained that is was varying below the guidelines based on the
nature of the offense and Avila Lopez’s history and characteristics.
Avila Lopez conclusionally asserts that the district court erred in
balancing the sentencing factors, and his general argument that the district
court should have sentenced him even further below the guidelines range merely
1
See Gall v. United States, 552 U.S. 38, 49-51 (2007).
2
See United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
3
See United States v. Lopez-Velasquez, 647 F.3d 284, 291 (5th Cir. 2011), petition for
cert. filed, No. 11-6912 (U.S. Oct. 14, 2011).
4
See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
2
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No. 11-20314
reflects his disagreement with the propriety of his sentence and the district
court’s weighing of the § 3553(a) factors.5
The issue of the reasonableness of Avila Lopez’s sentence is not foreclosed
by circuit precedent. Accordingly, the Government’s motion for summary
affirmance is denied.6 However, because Avila Lopez has not presented any
evidence to rebut the presumption of reasonableness attached to his below-
guidelines sentence,7 further briefing in this case is not necessary. We therefore
deny as unnecessary the Government’s alternative request for an extension of
time to file a brief, and we AFFIRM.
5
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (finding that the
defendant could not rebut the presumption of reasonableness of within-guidelines sentence
with simple disagreement with the propriety of the sentence imposed).
6
See United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir.
2006) (stating that summary disposition is appropriate when, among other things, “the
position of one of the parties is clearly right as a matter of law so that there can be no
substantial question as to the outcome of the case”); see also United States v. Godfrey, No. 11-
40263, 2011 WL 5429093, at *1 (5th Cir. Nov. 10, 2011) (unpublished) (per curiam). This
Court’s summary affirmance procedure is generally reserved for cases in which the parties
concede that the issues are foreclosed by Circuit precedent. See, e.g., United States v. Ortiz-
Grajeda, 95 F. App’x 589 (5th Cir. 2004).
7
See Cooks, 589 F.3d at 186.
3