USA v. Francisco Estrada-Garcia, No. 14-50932 (5th Cir. 2015)

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Case: 14-50931 Document: 00512991616 Page: 1 Date Filed: 04/02/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-50931 c/w No. 14-50932 Summary Calendar United States Court of Appeals Fifth Circuit FILED April 2, 2015 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCISCO JAVIER ESTRADA-GARCIA, Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 2:13-CR-1598-1 Before SMITH, WIENER, and ELROD, Circuit Judges. PER CURIAM: * Defendant-Appellant Francisco Javier Estrada-Garcia appeals the 26month within-guidelines sentence imposed following his guilty plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. He 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 14-50931 Document: 00512991616 Page: 2 Date Filed: 04/02/2015 No. 14- 50931 c/w No. 14-50932 also appeals the consecutive 18-month sentence imposed following the revocation of a prior term of supervised release. Estrada-Garcia contends that U.S.S.G. § 2L1.2 is not empirically based and effectively double counts a defendant’s criminal record. The 26-month sentence imposed for the illegal reentry offense was within the guidelines range and is therefore entitled to a presumption of reasonableness. See United States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008). As EstradaGarcia concedes, his contention that the presumption of reasonableness to his illegal reentry sentence should not apply because the illegal reentry Guideline lacks an empirical basis 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). We have consistently rejected “double counting” arguments and arguments that § 2L1.2 results in excessive sentences because it is not empirically based. See Duarte, 569 F.3d at 529-31. Estrada-Garcia also contends that the range overstated the seriousness of his nonviolent reentry offense and that the combined sentence failed to account for his personal history and characteristics. We have rejected the “international trespass” argument that Estrada-Garcia asserts. See United States v. JuarezDuarte, 513 F.3d 204, 212 (5th Cir. 2008). To the extent that Estrada-Garcia separately challenges the reasonableness of his revocation sentence, he has not shown that the withinguidelines 18-month revocation sentence was plainly unreasonable. See United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). Finally, Estrada-Garcia contends that the combined 44-month sentence is substantively unreasonable because it was greater than necessary to satisfy the sentencing goals in 18 U.S.C. § 3553(a). The district court had the discretion to order that the sentences be served consecutively. See United 2 Case: 14-50931 Document: 00512991616 Page: 3 Date Filed: 04/02/2015 No. 14- 50931 c/w No. 14-50932 States v. Whitelaw, 580 F.3d 256, 260-61 (5th Cir. 2009); see also 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f) & comment. (n.4), p.s. The consecutive sentence is entitled to a presumption of reasonableness. See United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). The district court considered the § 3553(a) factors, including Estrada-Garcia’s personal history and motives. He has not shown that the district court failed to give proper weight to his arguments or any particular § 3553(a) factor when imposing the sentences. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Estrada-Garcia’s motives for reentry are not sufficient to rebut the presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). AFFIRMED. 3

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