United States v. Jose Alvarado ( 2012 )

Case: 12-50183 Document: 00512067630 Page: 1 Date Filed: 11/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 29, 2012
No. 12-50183
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ALVARADO, also known as Jose Alverado,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-922-1
Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Alvarado appeals the sentence he received following his guilty plea
conviction for illegal reentry, in violation of 8 U.S.C. § 1326. Alvarado argues
that his bottom of the guidelines range sentence of 41 months is substantively
unreasonable because it was greater than necessary to satisfy the sentencing
goals outlined in 18 U.S.C. § 3553(a). He asserts that the district court should
have sentenced him below the guidelines range of imprisonment because the
unlawful reentry Guideline is not empirically based and effectively double counts
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50183 Document: 00512067630 Page: 2 Date Filed: 11/29/2012
No. 12-50183
a prior conviction and because his individual characteristics and the nature of
the instant offense warranted a lower sentence.
We review the substantive reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Although Alvarado
argued for a downward variance, he failed to object after the imposition of his
sentence, such that review is arguably for plain 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). We need not determine whether plain error
review is appropriate because Alvarado’s arguments fail even under the
abuse-of-discretion standard of review. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
Alvarado’s arguments regarding the reentry Guideline are foreclosed by
this court’s precedent. See United States v. Duarte, 569 F.3d 528, 530-31 (5th
Cir. 2009). We are not persuaded by the argument that the sentence is
unreasonably long because illegal reentry into the United States after removal
is no more than a trespassory offense. See United States v. Juarez-Duarte, 513
F.3d 204, 212 (5th Cir. 2008). The district court heard, considered, and rejected
Alvarado’s arguments for a sentence below the guideline range. Alvarado has
not rebutted the presumption of reasonableness that applies to his within-
guidelines sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008).
AFFIRMED.
2