United States v. Javier Solis-Diaz , 465 F. App'x 387 ( 2012 )

Case: 11-50867 Document: 00511807245 Page: 1 Date Filed: 03/30/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 30, 2012
No. 11-50867
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER SOLIS-DIAZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-1155-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Javier Solis-Diaz (Solis) appeals the sentence
imposed by the district court following his guilty plea conviction of illegal reentry
into the United States following removal. He contends that his 70-month
sentence of imprisonment was greater than necessary to meet the goals of 18
U.S.C. § 3553(a). Noting that he has lived most of his life in the United States,
Solis asserts that, because of his cultural assimilation, he is less culpable than
the ordinary immigration offender. He also asserts that his motive for returning
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50867 Document: 00511807245 Page: 2 Date Filed: 03/30/2012
No. 11-50867
to the United States—to be with his wife and children—is a mitigating
circumstance that weighs in favor of a sentence below the guideline range.
When, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is entitled to a presumption of
reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). To
rebut the presumption, the defendant must show 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. United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009).
We give “great deference” to a sentence that falls within the pertinent
guidelines range and “will infer that the judge has considered all the factors for
a fair sentence set forth in the Guidelines” when such a sentence is imposed.
United State v. Mares, 402 F.3d 511, 519-20 (2005). Although cultural
assimilation can be a mitigating factor, nothing requires the district court to give
it “dispositive weight.” United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir. 2008). Solis’s benign reason for reentering the United States, even in
conjunction with his cultural assimilation, is insufficient to rebut the
presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008).
Solis also asserts that the appellate presumption of reasonableness should
not apply because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not
empirically based. He correctly acknowledges that this argument is foreclosed
by our precedent and states that he is raising it to preserve it for possible further
review. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
AFFIRMED.
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