USA v. Victor Rios-Martinez, No. 10-50208 (5th Cir. 2010)
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Case: 10-50208 Document: 00511316051 Page: 1 Date Filed: 12/08/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-50208 Summary Calendar December 8, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. VICTOR RIOS-MARTINEZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:09-CR-607-1 Before WIENER, PRADO and OWEN, Circuit Judges. PER CURIAM:* Victor Rios-Martinez (Rios) was convicted of one count of illegal reentry into the United States, and the district court sentenced him to serve 46 months in prison and a three-year term of supervised release. Rios filed a timely notice of appeal. On appeal, Rios challenges only the sentence imposed. He maintains that his within-guidelines sentence should not be presumed reasonable because U.S.S.G. § 2L1.2 is not empirically based and is thus flawed under Kimbrough * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50208 Document: 00511316051 Page: 2 Date Filed: 12/08/2010 No. 10-50208 v. United States, 552 U.S. 85, 109-10 (2007). He acknowledges, however, that we have rejected this argument. United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Rios also argues that the 46-month sentence imposed was greater than necessary to achieve the goals of sentencing set forth at 18 U.S.C. § 3553(a). He points out his difficult childhood and his problem with alcohol. He also maintains that the prior conviction that resulted in a 16-level enhancement under § 2L1.2(b)(1)(A) was too temporally remote to warrant such an increase in his sentencing range. Rios s arguments concerning the district court s weighing of his mitigating sentencing factors amount to a disagreement with the district court s weighing of these factors and the appropriateness of his within-guidelines sentence. This disagreement does not suffice to show error in connection with his sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Rios has not rebutted the presumption of reasonableness that attaches to his within-guidelines sentence, nor has he shown that his sentence was unreasonable. See United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Accordingly, the judgment of the district court is AFFIRMED. 2
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