United States v. Jose Reyes-Carrera , 488 F. App'x 802 ( 2012 )

Case: 11-50963 Document: 00511980337 Page: 1 Date Filed: 09/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2012
No. 11-50963
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE GUADALUPE REYES-CARRERA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1552-1
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Reyes-Carrera (Reyes) pleaded guilty to illegally
reentering the United States after deportation, in violation of 8 U.S.C. § 1326,
and was sentenced, within the advisory Guidelines sentencing range, to 48-
months imprisonment. He appeals only his sentence, contending it is
unreasonable.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50963 Document: 00511980337 Page: 2 Date Filed: 09/10/2012
No. 11-50963
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, 552 U.S. 38, 51 (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).
Regarding claimed procedural error, Reyes contends the district court
found, in its review of Reyes’ history and characteristics for sentencing purposes,
that he had been convicted in Michigan of rape or aggravated sexual assault
with a 15-year-old victim, when in fact his conviction was for attempted sexual
assault. Assuming this issue was properly preserved in district court, the court
made no such finding. Instead, it merely expressed its belief that any sexual
relationship between a person of Reyes’ age and a 15-year-old is, by operation of
law, nonconsensual for the child. Reyes acknowledged having engaged in such
a relationship. Thus, the court found no “clearly erroneous facts” and committed
no procedural error. Gall, 552 U.S. at 51.
We reject also Reyes’ contention that his sentence is substantively
unreasonable. The district court recited the reasons for the sentence, and those
reasons comport with the § 3553(a) sentencing factors. Because, as noted, the
sentence is within the properly calculated advisory Guidelines sentencing range,
our court may apply a presumption of reasonableness to the sentence. E.g.,
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); Rita v. United States,
551 U.S. 338, 347 (2007). The record offers no convincing reason, including any
challenged consideration by the district court of a reported bus-rocking incident
by Reyes en route to rearraignment, not to apply that presumption. E.g., Gall,
552 U.S. at 51.
AFFIRMED.
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