United States v. Juan Lucio , 464 F. App'x 332 ( 2012 )

Case: 11-20329 Document: 00511788146 Page: 1 Date Filed: 03/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 14, 2012
No. 11-20329
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JUAN LUCIO, also known as Juan Joe Lucio, also known as Juan Luci,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-680-1
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Lucio appeals the 46-month, within-Guidelines sentence, imposed
following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. Although acknowledging that a within-Guidelines sentence is presumed
reasonable, Lucio contends his sentence is substantively unreasonable because
it exceeds what is necessary to comply with 18 U.S.C. § 3553(a)(2). Lucio’s
having preserved this issue, review is for abuse of discretion. E.g., United States
v. Rodriguez, 660 F.3d 221, 233 (5th Cir. 2011).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20329 Document: 00511788146 Page: 2 Date Filed: 03/14/2012
No. 11-20329
Lucio can rebut the presumptive reasonabless of his sentence only by
showing that it: does not account for 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 sentencing factors. United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Neither the age of the prior conviction
used to enhance Lucio’s sentence nor his cultural assimilation rebuts the
presumption. Rodriguez, 660 F.3d at 234-35. Further, the record reflects the
district court considered Lucio’s family’s mistaken belief that Lucio could stay
in this country, despite his illegal-reentry conviction, as a factor that weighed
against cultural assimilation, not as an aggravating factor, as Lucio suggests.
AFFIRMED.
2