United States v. Fernando Lopez-Rivera , 708 F. App'x 218 ( 2018 )

Case: 17-50347 Document: 00514304833 Page: 1 Date Filed: 01/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50347
Fifth Circuit
FILED
Summary Calendar January 11, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
FERNANDO LOPEZ-RIVERA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-1320-1
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Fernando Lopez-Rivera appeals the 85-month within-guidelines
sentence imposed following his guilty plea conviction for illegally reentering
the United States in violation of 8 U.S.C. § 1326. He asserts that his sentence
was substantively unreasonable because it was greater than necessary to
achieve the sentencing goals set forth in 18 U.S.C. § 3553(a) for the following
reasons: (i) a prior felony drug trafficking offense was double-counted because
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 17-50347
it was used to impose a 16-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A) (2015) and to increase his criminal history category from V to
VI; (ii) the Guidelines overstated the seriousness of his illegal reentry offense,
which did not pose a danger to others; (iii) he came to this country as a young
child, and he only returned to see his family; and (iv) he will be deterred from
further illegal reentry now that he understands the harsh penalties attendant
to the offense.
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Because the district
court imposed a within-guidelines sentence, it is presumptively reasonable.
See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
The presumption of reasonableness “is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Although Lopez-Rivera challenges the presumption of reasonableness as
applied to sentences under § 2L1.2 on the ground that the Guideline is not
empirically based, he concedes that the issue is foreclosed. See United States
v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). We have
rejected Lopez-Rivera’s argument that § 2L1.2’s double-counting of a
defendant’s criminal history necessarily renders a sentence unreasonable. See
United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009). In addition, we
are not persuaded by the argument that illegal reentry is not a serious offense
and does not pose a danger to others. See United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006). Moreover, the fact that Lopez-Rivera returned
to the United States to see his family, after having lived here since he was a
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No. 17-50347
young child, is an insufficient ground to rebut the presumption of
reasonableness applicable to his sentence. See United States v. Gomez-
Herrera, 523 F.3d 554, 565 (5th Cir. 2008). Finally, Lopez-Rivera’s contention
that the harsh penalties associated with his offense will deter him from
returning to the United States serves to support the district court’s sentence.
See § 3553(a)(2)(B).
Lopez-Rivera has not shown that the district court abused its discretion,
and he has not overcome the presumption of reasonableness. See Gall, 552
U.S. at 51; Campos-Maldonado, 531 F.3d at 338. Accordingly, the judgment of
the district court is AFFIRMED.
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