United States v. Francisco De La Cruz-Navarro , 476 F. App'x 762 ( 2012 )

Case: 11-50771 Document: 00511822432 Page: 1 Date Filed: 04/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 16, 2012
No. 11-50771
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
FRANCISCO JAVIER DE LA CRUZ-NAVARRO, also known as Francisco De La
Cruz-Navarro, also known as Francisco De La Cruz,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-189-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Francisco Javier De La Cruz-Navarro appeals his guidelines-minimum
sentence of 46 months of imprisonment, imposed following his guilty-plea
conviction for illegally reentering the United States in violation of 8 U.S.C.
§ 1326. The sentence is substantively unreasonable, he asserts, because it is
greater than necessary to achieve the sentencing goals set forth in 18 U.S.C.
§ 3553(a). De La Cruz-Navarro argues that the district court failed to give
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50771 Document: 00511822432 Page: 2 Date Filed: 04/16/2012
No. 11-50771
sufficient weight to his cultural assimilation, specifically that he came to the
United States as a young child, went to school in the United States, speaks
English, and considers the United States his home. Moreover, he contends that
the guidelines sufficiently accounted for his prior drug trafficking offense by
increasing both his offense level and his criminal history score.
We review the substantive reasonableness of De La Cruz-Navarro’s
sentence for an abuse of discretion, taking into account the “totality of the
circumstances.” United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)) (internal quotation marks
omitted); see also United States v. Gomez-Herrera, 523 F.3d 554, 565 & n.6 (5th
Cir. 2008). Because De La Cruz-Navarro’s sentence was within the guidelines
range, it is presumptively reasonable. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009) (citing United States v. Candia, 454 F.3d 468, 473 (5th Cir.
2006)). Although De La Cruz-Navarro challenges that presumption of
reasonableness as applied to sentences under U.S.S.G. § 2L1.2, he recognizes
that the issue is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009).
De La Cruz-Navarro has failed to show that his sentence does not account
for a factor that should receive significant weight, gives significant weight to an
irrelevant or improper factor, or represents a clear error of judgment in
balancing sentencing factors. See Cooks, 589 F.3d at 186. His arguments that
he came to this country as a young child and considers it to be home do not
render his sentence unreasonable. See Gomez-Herrera, 523 F.3d at 565-66. Nor
is his disagreement with the district court’s assessment of an appropriate
sentence under the § 3553(a) factors sufficient to rebut the presumption of
reasonableness. See id. The judgment of the district court is AFFIRMED.
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