USA v. Cruz, No. 07-40165 (5th Cir. 2007)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 21, 2007 No. 07-40165 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ISRAEL CRUZ Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:06-CR-1195-2 Before GARWOOD, WIENER and BARKSDALE, Circuit Judges. PER CURIAM:* Israel Cruz appeals his January 2007 sentence for conspiracy to transport an undocumented alien for financial gain. Cruz does not suggest that the district court erred in calculating the Sentencing Guidelines or that his sentence is outside the applicable Sentencing Guidelines range, but he argues that his sentence is unreasonable under 18 U.S.C. § 3553(a). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 07-40165 On appeal, a sentence within a properly calculated guideline range is accorded a rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006); See Rita v. United States, 127 S.Ct. 2456, 2462-68 (2007) (approving use of presumption). To rebut that presumption, Cruz, as appellant, must show that his sentence falls so far afoul of a relevant sentencing factor that it constitute[s] a clear error in the court s exercise of its broad sentencing discretion. United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.), cert. denied, 128 S.Ct. 163 (2007). As Cruz conceded at sentencing, the correctly calculated advisory guideline range applicable in his case, and accepted by the district court, was 21 to 27 months confinement (and 2 to 3 years supervised release). Cruz was sentenced to 24 months confinement to be followed by 3 years supervised release. The 24 month confinement term was expressly made consecutive (and additional) to the 6 month confinement term imposed the same date on the revocation of supervised release which had previously been imposed on Cruz s prior conviction for a similar immigration offense. Cruz suggests that an 18-month sentence would be reasonable under 18 U.S.C. § 3553(a) because the specific facts of his offense are not particularly serious and his offense was caused by a lapse in judgment. He asserts that his current sentence does not further the interests of justice and that it is greater than necessary to protect the public from harm. Cruz has not shown that the district court s weighing of the section 3553 facts resulted in an unreasonable sentence. Nikonova, 480 F.3d at 376. AFFIRMED. 2
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