United States v. Quiroz-Carrillo , 348 F. App'x 48 ( 2009 )

Menu:

          IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
October 9, 2009
No. 08-51245
Summary Calendar               Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROGELIO QUIROZ-CARRILLO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-1954-ALL
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM *
Rogelio Quiroz-Carrillo appeals the 27-month sentence imposed following
his conviction on a guilty plea to being an alien found unlawfully in the United
States after previously having been removed.      See

8 U.S.C. § 1326

(a).     He
contends the sentence imposed by the district court was unreasonable because
it was greater than necessary to meet the goals of

18 U.S.C. § 3553

(a). Although
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
Quiroz concedes the advisory guidelines range was properly calculated, he
contends: the range of 27-33 months was too severe; the illegal reentry guideline
is not empirically based and double-counted his criminal record; and, the
presumption of reasonableness should not apply to his within-guidelines
sentence. Quiroz further claims: his offense did not pose a danger to others; and
the guidelines range did not account for his motive for reentering, which related
to family issues.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States,

128 S. Ct. 586

, 596 (2007).      In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez,

517 F.3d 751

, 764 (5th Cir. 2008); United
States v. Villegas,

404 F.3d 355

, 359 (5th Cir. 2005).
As noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez,

564 F.3d 750

, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error”.

Id. at 752-53

. If, as in this case,
there is no such error, we then review the substantive reasonableness of the
sentence imposed, as noted above, for an abuse of discretion.

Id. at 751-53

.
Because Quiroz did not raise his empirical-evidence and double-counting
contentions in district court, we review them only for plain error. United States
v. Mondragon-Santiago,

564 F.3d 357

, 361 (5th Cir. 2009), petition for cert. filed
(June 24, 2009) (No. 08-11099).
Quiroz’ claim that his within-guidelines sentence is not entitled to a
presumption of reasonableness, because the relevant guideline is not supported
by empirical evidence, lacks merit. See United States v. Duarte,

569 F.3d 528

,
529-31 (5th Cir. 2009), petition for cert. filed (Aug. 27, 2009) (No. 09-6195);
2
Mondragon-Santiago,

564 F.3d at 366-67

.         Likewise, we have rejected the
assertion that using a prior conviction to determine the applicable offense level,
as well as to determine a defendant’s criminal history score, results in
impermissible double counting. See Duarte,

569 F.3d at 529-31

. In short, there
is no error, plain or otherwise, for these two issues.
Quiroz’ assertions that he should have received a lower sentence based on
his motive for returning to the United States and that his offense overstated the
seriousness of his conduct are insufficient to overcome the presumption of
reasonableness of his within-guidelines sentence.        United States v. Gomez-
Herrera,

523 F.3d 554