USA v. Vicente Flores-Cruz, No. 09-50587 (5th Cir. 2010)
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Case: 09-50587 Document: 00511085998 Page: 1 Date Filed: 04/20/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50587 Conference Calendar April 20, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. VICENTE FLORES-CRUZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:08-CR-848-1 Before SMITH, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Vicente Flores-Cruz appeals the 77-month sentence imposed following his guilty plea conviction for illegal reentry of a deported alien. He argues that the advisory guidelines range of 77-96 months of imprisonment was too severe, the illegal reentry Guideline is not empirically based and double-counts a defendant s criminal record, and the presumption of reasonableness of a within guidelines sentence should not apply. Flores-Cruz asserts that because his prior drug conviction was used to increase his criminal history score and to increase * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50587 Document: 00511085998 Page: 2 No. 09-50587 Date Filed: 04/20/2010 his offense level under U.S.S.G. § 2L1.2, the resulting guidelines range was greater than necessary to achieve the sentencing goals in 18 U.S.C. § 3553(a), particularly with respect to deterring future crime and protecting the public, and that this affects the fairness and integrity of the criminal proceeding. We review for plain error because Flores-Cruz did not raise these issues in the district court. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). As Flores-Cruz concedes, this court has rejected the argument that there is no empirical support for the illegal reentry Guideline in § 2L1.2 and, therefore, that a presumption of reasonableness should not apply to a within guidelines sentence under this provision. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); Mondragon-Santiago, 564 F.3d at 366-67. Likewise, this court has rejected the assertion that using a prior conviction to determine the applicable offense level as well as a defendant s criminal history score results in impermissible double-counting. Duarte, 569 F.3d at 529-31. Because the district court imposed a sentence within a properly calculated guidelines range, it is presumptively reasonable. See United States v. CamposMaldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008); see also Rita v. United States, 551 U.S. 338, 346-47 (2007). The district court determined that, although many of Flores-Cruz s convictions were remote in time, his recent DWI offenses indicated that he was still having problems with alcohol and that his criminal behavior had not stopped. Accordingly, FloresCruz s assertion that the sentence imposed was greater than necessary to meet § 3553(a) s goals of deterring future crime and protecting the public is without merit and is insufficient to rebut the presumption of reasonableness. See Campos-Maldonado, 531 F.3d at 339; United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). He has failed to establish that his sentence was the result of error, much less plain error. AFFIRMED. 2
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