USA v. Edder Ortega-Alvarado, No. 12-50449 (5th Cir. 2013)
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Case: 12-50449 Document: 00512239319 Page: 1 Date Filed: 05/13/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50449 Summary Calendar May 13, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. EDDER GREGORIO ORTEGA-ALVARADO, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-110-1 Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM:* Edder Gregorio Ortega-Alvarado pleaded guilty to illegally reentering the United States after having been removed, in violation of 8 U.S.C. § 1326, and received 46 months imprisonment. Contesting only the substantive reasonableness of his sentence, which is at the bottom of the advisory Guidelines sentencing range, Ortega contends his sentence is greater than necessary to accomplish the sentencing goals provided in 18 U.S.C. § 3553(a); he does not claim procedural error by the district court in imposing his sentence. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50449 Document: 00512239319 Page: 2 Date Filed: 05/13/2013 No. 12-50449 Post-Booker, the Sentencing Guidelines are advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). As noted, Ortega does not claim procedural error. Regarding his claim of substantive unreasonableness, Ortega contends Guideline § 2L1.2 results in an excessive sentence because it is not empirically based, and his reentry amounts to a mere international trespass. Our court has consistently rejected both contentions. E.g., United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009) (rejecting empirical-basis contention); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (rejecting internationaltrespass contention). (Ortega concedes the lack-of-empirical-basis claim is foreclosed; he raises it only to preserve it for possible further review.) Ortega contends also his sentence is excessive because Guideline § 2L1.2: resulted in double-counting; established an advisory Guidelines range overstating the seriousness of his offense of conviction; and failed to account for his cultural assimilation, his benign motives for reentering the United States, and his reentering under duress. At sentencing, the district court considered: the advisory Guidelines sentencing range; Ortega s request for a downward variance and his statement in allocution; the Government s request for a withinGuidelines sentence; and the § 3553(a) factors. It determined a 46-month sentence was appropriate. The record reflects the court made an individualized determination, based on the facts presented, in the light of the § 3553(a) sentencing factors. See Gall, 552 U.S. at 50. [A] sentence within a properly calculated Guideline range is presumptively reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2 Case: 12-50449 Document: 00512239319 Page: 3 Date Filed: 05/13/2013 No. 12-50449 2006); Rita v. United States, 551 U.S. 338, 347 (2007). Ortega has not shown the court failed to give proper weight to his contentions or to any particular § 3553(a) factor. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Therefore, he fails to show that the court abused its discretion, see Gall, 552 U.S. at 51, and fails to rebut the presumption of reasonableness that attached to his within-Guidelines sentence. E.g., Alonzo, 435 F.3d at 554-55; United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). AFFIRMED. 3
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