USA v. Ricardo Rivera-Limon, No. 14-51008 (5th Cir. 2015)
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Case: 14-51008 Document: 00512979401 Page: 1 Date Filed: 03/24/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-51008 Summary Calendar United States Court of Appeals Fifth Circuit FILED March 24, 2015 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. RICARDO RIVERA-LIMON, also known as Ricardo Reyes, also known as Ricardo Marcelino Rivera-Limon, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:14-CR-909-1 Before KING, JOLLY, and HAYNES, Circuit Judges. PER CURIAM: * Ricardo Rivera-Limon appeals the within-guidelines sentence imposed following his guilty plea conviction for illegal reentry following deportation in violation of 8 U.S.C. § 1326. For the first time on appeal, he challenges the substantive reasonableness of his sentence and argues that it was greater than necessary to satisfy the sentencing goals set forth in 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 14-51008 Document: 00512979401 Page: 2 Date Filed: 03/24/2015 No. 14-51008 According to Rivera-Limon, U.S.S.G. § 2L1.2, the Guideline for the offense of illegal reentry, is not empirically based and effectively double counts a defendant’s criminal record. He also argues that the guidelines range overstated the seriousness of his non-violent reentry offense and that his sentence does not account for his personal history and characteristics, specifically, his motive for returning to the United States. This court assesses the substantive reasonableness of a sentence imposed by the district court for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Where, as here, a defendant fails to object in the district court to the reasonableness of the sentence, we review for plain error. United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). The district court must correctly calculate the advisory guidelines range and make an individualized assessment based on the facts of the case in light of § 3553(a). Gall, 552 U.S. at 49-50. It then must impose a sentence sufficient, but not greater than necessary, to comply with the goals of § 3553(a)(2). § 3553(a). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos- Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Rivera-Limon argues that we should not apply the presumption of reasonableness to his sentence that was calculated under § 2L1.2 because this Guideline is not empirically based; he recognizes, however, that his claim is foreclosed by circuit precedent and raises the issue in order to preserve it for further review. See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 2009). We have also rejected arguments that double-counting necessarily renders a sentence unreasonable, see Duarte, 569 F.3d at 529-30, and that the Guidelines overstate the seriousness of illegal reentry because it is simply a non-violent 2 Case: 14-51008 Document: 00512979401 Page: 3 Date Filed: 03/24/2015 No. 14-51008 international trespass offense, United States v. Aguirre-Villa, 460 F.3d 681, 682-83 (5th Cir. 2006). The district court in this case considered Rivera-Limon’s explanation for illegally reentering the United States, concluded that the applicable guidelines range was reasonable, and imposed a sentence within that range. RiveraLimon’s argument that the sentence does not reflect his personal history and characteristics does not establish that his sentence fails to account for a § 3553(a) factor, “gives significant weight to an irrelevant or improper factor, or [ ] represents a clear error of judgment in balancing the factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The district court was in a superior position to find facts and assess their importance under § 3553(a), and this court will not, as Rivera-Limon seems to urge, reweigh the district court’s assessment of the § 3353(a) factors. See Gall, 552 U.S. at 51-52; CamposMaldonado, 531 F.3d at 339. Rivera-Limon’s assertions are insufficient to rebut the presumption of reasonableness. See Duarte, 569 F.3d at 529-30; United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Accordingly, the judgment of the district court is AFFIRMED. 3
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