United States v. Pedro Rosales-Trujillo , 470 F. App'x 295 ( 2012 )

Case: 11-50778 Document: 00511837476 Page: 1 Date Filed: 04/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 27, 2012
No. 11-50778
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
PEDRO ROSALES-TRUJILLO,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-858-1
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Pedro Rosales-Trujillo contests the within-Guidelines sentence of 77-
months’ imprisonment, imposed following his guilty-plea conviction for illegal
reentry after deportation. Rosales challenges only the substantive
reasonableness of his sentence, maintaining it is greater than necessary to
accomplish the sentencing objectives of 18 U.S.C. § 3553(a).
Although Rosales moved in district court for a downward variance, he
failed to object after imposition of sentence. Thus, review is arguably for plain
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50778 Document: 00511837476 Page: 2 Date Filed: 04/27/2012
No. 11-50778
error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). But see
United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996). Our court need not
determine whether such limited review is appropriate, however, because
Rosales’ contentions fail even under the more liberal abuse-of-discretion
standard which applies, if the issue is preserved in district court, for review of
the substantive reasonableness of a sentence. Gall v. United States, 552 U.S. 38,
51 (2007). Because Rosales’ sentence is within his advisory Guidelines
sentencing range, it is presumptively reasonable. E.g., United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009).
Rosales contends the presumption of reasonableness should not apply
because Guideline § 2L1.2 is not empirically based. He concedes, however, that
this contention is foreclosed by our precedent. United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). Similarly, he concedes his
contention that he deserves a lesser sentence based on the disparity in “fast
track” programs is foreclosed by our precedent. United States v. Gomez-Herrera,
523 F.3d 554, 562-63 & n.4 (5th Cir. 2008). He raises these two issues only to
preserve them for possible further review.
Last, Rosales contends his advisory Guidelines sentencing range failed to
account for his personal history and circumstances. The district court listened
to Rosales’ contentions but concluded that a sentence at the bottom of his
advisory Guidelines sentencing range was appropriate. Although cultural
assimilation can be a mitigating factor, a district court is not required to give it
“dispositive weight”. United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir. 2008). Rosales’ benign reason for reentering the United States (to find
work), even in conjunction with his cultural assimilation, is insufficient to rebut
the presumption of reasonableness.
AFFIRMED.
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