United States v. Gausin-Ceniseros , 255 F. App'x 875 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 26, 2007
No. 07-50050
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TOMAS GAUSIN-CENISEROS, also known as Tomas Garcin-Ceniceros
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1490-ALL
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Tomas Gausin-Ceniseros having pleaded guilty to one count of illegal
reentry following deportation, the district court sentenced him, pursuant to 8
U.S.C. § 1326(b), to 120 months in prison.
In claiming the sentence is unreasonable, Gausin contends: his previous
crimes were accounted for by the Sentencing Guidelines; and the sentence
imposed by the district court, which represents an upward deviation from the 77-
*
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should not be published and is not precedent except under the limited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.
No. 07-50050
96 month advisory guideline range, was greater than necessary to achieve the
sentencing goals set forth in 18 U.S.C. § 3553(a).
The district court gave fact-specific reasons, consistent with the factors set
forth in § 3553(a), for its determination that a sentence above the advisory
guideline range was warranted. The court’s comments establish it: was aware
of the correctly calculated guideline range; and took into consideration the abuse
Gausin suffered as a child. On the other hand, the district court determined
Gausin had continued to commit violent offenses after receiving lenient
treatment in the past, and there was a need to impress upon Gausin the
seriousness of his offense and to protect society and Gausin’s family from further
criminal conduct. The record does not establish the district court failed to
account for a factor that should have received great weight, gave significant
weight to an irrelevant factor, or committed a clear error of judgment in
balancing the sentencing factors. See, e.g., United States v. Smith, 440 F.3d 704,
707-09 (5th Cir. 2006). Accordingly, Gausin has failed to show the sentence is
unreasonable.
In the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Gausin
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors, rather than elements of the
offense that must be found by a jury. This court has held this issue is “fully
foreclosed from further debate”. United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
AFFIRMED.
2