USA v. Isidro Ayala-Ura, No. 12-50324 (5th Cir. 2013)

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Case: 12-50324 Document: 00512226607 Page: 1 Date Filed: 05/01/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50324 Summary Calendar May 1, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ISIDRO AYALA-URA, also known as Omar Garcia-Rodriguez, also known as Isidro Ayala-Uri, Defendant-Appellant Cons. w/ No. 12-50328 UNITED STATES OF AMERICA, Plaintiff - Appellee v. OMAR GARCIA-RODRIGUEZ, also known as Isidro Ayala-Ura, also known as Rafael Ayala, Defendant - Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 3:11-CR-2862-1 USDC No. 3:12-CR-489-1 Case: 12-50324 Document: 00512226607 Page: 2 Date Filed: 05/01/2013 No. 12-50324 c/w No. 12-50328 Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM:* Defendant-Appellant Isidro Ayala-Ura, also known as Omar GarciaRodriguez and Isidro Ayala-Uri, appeals the concurrent 30-month withinguidelines sentences imposed following his guilty-plea conviction on one count of attempted illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(1), and one count of false personation in immigration matters, in violation of 18 U.S.C. § 1546(a). He also appeals the consecutive 21-month sentence imposed following the revocation of a prior term of supervised release. Ayala-Ura contends that the 51-month combined sentence is substantively unreasonable because it was greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). The sentences imposed for Ayala-Ura s new immigration offenses and on the revocation of supervised release are separate sentences imposed in separate criminal proceedings. See Johnson v. United States, 529 U.S. 694, 700 (2000). Moreover, we have rejected contentions that a consecutive within-guidelines revocation sentence, like Ayala-Ura s, renders the combined sentence unreasonable. See United States v. Lopez-Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008). His challenge to the substantive reasonableness of the combined sentence is without merit. Neither has Ayala-Ura shown that his concurrent within-guidelines sentences of 30 months are substantively unreasonable. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). We have rejected a claim that the Sentencing Guidelines overstate the seriousness of illegal reentry simply because the offense is a non-violent international trespass. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Further, Ayala-Ura s * 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. 2 Case: 12-50324 Document: 00512226607 Page: 3 Date Filed: 05/01/2013 No. 12-50324 c/w No. 12-50328 assertions that his motive for reentering the United States, his low risk of recidivism and his ineligibility for specific Bureau of Prisons programs justified a lower sentence are insufficient to rebut the presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). The instant record reflects that the district court considered Ayala-Ura s mitigation arguments and ultimately concluded that a sentence at the top of the applicable guidelines range was appropriate based on the circumstances of the case and the § 3553(a) factors. That we might reasonably conclude that a different sentence was appropriate is not a sufficient reason to justify reversal. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). Ayala-Ura has also failed to show that the consecutive 21-month withinguidelines revocation sentence is substantively or plainly unreasonable. See United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). We review preserved challenges to revocation sentences under the deferential plainly unreasonable standard. Id. In so doing, we consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Id. (internal quotation marks and citation omitted). If we conclude that the sentence is unreasonable, we then determine whether the error was obvious under existing law. Id. Ayala-Ura contends that the plainly unreasonable standard adopted by Miller is incorrect and that revocation sentences should be reviewed under the standard of reasonableness set forth in United States v. Booker, 543 U.S. 220 (2005). He acknowledges, however, that his argument is foreclosed and that he merely seeks to preserve the issue for further review. The 21-month revocation sentence was within the range recommended by the policy statements and within the statutory maximum term of imprisonment that the district court could have imposed. See 18 U.S.C. § 3583(e)(3); U.S.S.G. 3 Case: 12-50324 Document: 00512226607 Page: 4 Date Filed: 05/01/2013 No. 12-50324 c/w No. 12-50328 § 7B1.4(a). As previously discussed, Ayala-Ura s assertions that his motive for reentering the United States, his low risk of recidivism, and his ineligibility for particular Bureau of Prisons programs justified a lower sentence are insufficient to rebut the presumption of reasonableness. See Gomez-Herrera, 523 F.3d at 565-66; Rodriguez, 523 F.3d at 526. Accordingly, the district court s judgments are AFFIRMED. 4

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