United States v. Primitivo Marquez-Gatica , 583 F. App'x 349 ( 2014 )

Case: 13-51167 Document: 00512811764 Page: 1 Date Filed: 10/22/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51167
c/w No. 13-51173
United States Court of Appeals
Fifth Circuit
Summary Calendar FILED
October 22, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
PRIMITIVO MARQUEZ-GATICA,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-1096-1
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Primitivo Marquez-Gatica appeals the sentences imposed following his
guilty plea conviction for illegal reentry into the United States after removal
and the revocation of his prior supervised release. He argues that the
combined 39-month sentence was greater than necessary to meet the goals of
18 U.S.C. § 3553(a) and therefore substantively unreasonable. He contends
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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that the presumption of reasonableness should not apply because the illegal
reentry guideline lacks an empirical basis. He also maintains that the
guideline provision double-counts his criminal history and overstates the
seriousness of his offense, which is essentially an international trespass
offense. He further contends that the sentence failed to reflect his personal
history and characteristics and that his motive for returning to the United
States mitigates the seriousness of his offense.
Because Marquez-Gatica did not object to the reasonableness of his
sentence or the revocation sentence in district court, review is limited to plain
error. See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). A plain
error is a forfeited error that is clear or obvious and affects the defendant’s
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). When
those elements are shown, this court has the discretion to correct the error only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
Marquez-Gatica’s 25-month sentence for his illegal reentry offense was
within the advisory guidelines range and therefore entitled to the presumption
of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). As Marquez-Gatica concedes, his argument that we should not apply
the presumption of reasonableness because U.S.S.G. § 2L1.2 is not empirically
based is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009). We have also rejected his arguments that double-counting of his prior
convictions necessarily renders a sentence unreasonable and that the
Guidelines overstate the seriousness of illegal reentry because it is a
nonviolent international trespass offense. See id. at 529-30; United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Marquez-Gatica’s motive to
support his family is not sufficient to justify a lower sentence or to rebut the
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presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008). Because Marquez-Gatica has not shown that the
district court failed to consider any significant factors, gave undue weight to
any improper factors, or clearly erred in balancing the sentencing factors, he
has failed to rebut the presumption of reasonableness. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
In addition, Marquez-Gatica has not shown that the 14-month
revocation sentence was substantively unreasonable. The district court had
the discretion to order that the sentences be served consecutively. See United
States v. Whitelaw, 580 F.3d 256, 260-61 (5th Cir. 2009); see also 18 U.S.C.
§ 3584(a); U.S.S.G. § 7B1.3(f) & cmt. n.4, p.s. Because the sentence both fell
within the advisory range and was consistent with the Guidelines’ policy
regarding consecutive sentences, it is entitled to a presumption of
reasonableness. See U.S.S.G. § 7B1.1(a)(2); § 7B1.4; United States v. Candia,
454 F.3d 468, 472-73 (5th Cir. 2006). Marquez-Gatica has failed to show that
the district court abused its discretion by imposing the consecutive sentence
and has failed to rebut the presumption of reasonableness. See United States
v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008).
AFFIRMED.
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