USA v. Wilken Ruiz-Guifarro, No. 09-50626 (5th Cir. 2010)
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Case: 09-50626 Document: 00511086048 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. 09-50626 Conference Calendar April 20, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. WILKEN RUIZ-GUIFARRO, also known as Andres Gomez-Ruiz, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:09-CR-66-1 Before SMITH, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Wilken Ruiz-Guifarro appeals his sentence following his guilty plea conviction for illegal reentry into the United States in violation of 8 U.S.C. § 1326. Ruiz-Guifarro was sentenced within his advisory guidelines range to 77 months of imprisonment and three years of supervised release. Ruiz-Guifarro contends that his sentence is not entitled to a presumption of reasonableness because U.S.S.G. § 2L1.2, the Guideline applicable to violations of § 1326, is not empirically based and double-counts a defendant s criminal history. * As 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50626 Document: 00511086048 Page: 2 No. 09-50626 Date Filed: 04/20/2010 acknowledged by Ruiz-Guifarro, this argument is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). Ruiz-Guifarro also contends that his sentence should be vacated as substantively unreasonable because it was based in part on § 2L1.2 and was greater than necessary to meet the requirements of 18 U.S.C. § 3553(a). Regarding § 3553(a), Ruiz-Guifarro contends that his sentence overstated the seriousness of his illegal reentry offense and failed to properly reflect his personal history and characteristics. The substantive reasonableness of RuizGuifarro s sentence is reviewed for plain error because he did not object on that ground in the district court. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Ruiz-Guifarro s appellate arguments fail to establish that his sentence was the result of error, much less plain error. See Gall v. United States, 552 U.S. 38, 51 (2007); Duarte, 569 F.3d at 529-31 & n.11; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). AFFIRMED. 2
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