USA v. Armando Arguelles-Carballo, No. 12-50181 (5th Cir. 2013)
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Case: 12-50181 Document: 00512098127 Page: 1 Date Filed: 01/02/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50181 Summary Calendar January 2, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ARMANDO ARGUELLES-CARBALLO, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:11-CR-795-1 Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM:* For the first time on appeal, Armando Arguelles-Carballo asserts that his 87-month guidelines sentence for illegal reentry is substantively unreasonable. According to Arguelles-Carballo, the applicable guideline produced an unreasonably high sentence because the guideline was not empirically based and it double-counted his criminal history. He further asserts that his sentence overstated the seriousness of his offense, failed to provide just punishment, and undermined respect for the law because his illegal reentry offense was not 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 12-50181 Document: 00512098127 Page: 2 Date Filed: 01/02/2013 No. 12-50181 crime of violence or dangerous to others and was, at bottom, an international trespass. In addition, Arguelles-Carballo contends that the sentence fails to account for his personal history and characteristics as a 55-year-old who moved to the United States in 1975, worked for 30 years as a welder, married, and had children who are United States citizens. Finally, he asserts that he reentered the United States because it was where he had lived most of his life and that his motive for returning mitigates the seriousness of the offense. Although we ordinarily review sentences for reasonableness under an abuse-of-discretion standard, we review here for plain error because ArguellesCarballo did not object to his sentence. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). A within-guidelines sentence is not unreasonable because of the lack of empirical basis or any double-counting of the defendant s criminal history. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). We also find no merit in the argument that the sentence is unreasonable because illegal reentry is, according to Arguelles-Carballo, merely an international trespass. United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). The district court here adopted the presentence report, which described ArguellesCarballo s personal history and characteristics. The court determined that an 87-month sentence was necessary after weighing the factors in 18 U.S.C. ยง 3553(a) and emphasizing Arguelles-Carballo s significant criminal history, the nature of his past offenses, the likelihood that he would re-offend, and the need to protect the public. Arguelles-Carballo has not shown that his presumptively reasonable sentence does not account for a factor that should have received significant weight, that it gives significant weight to an irrelevant or improper factor, or that it represents a clear error of judgment in balancing sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Because he fails to show error, plain or otherwise, the judgment of the district court is AFFIRMED. 2
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