Victor Fourstar, Jr. v. Ricardo Martinez, 541 F. App'x 494

Victor Fourstar, Jr. v. Ricardo Martinez

541 F. App'x 494

5th Cir.

2013

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Docket

UNITED STATES of America, Plaintiff-Appellee v. Lever Sander QUINTANILLA-SALGADO, Defendant-Appellant

No. 13-30510

United States Court of Appeals, Fifth Circuit

Oct. 15, 2013

543 F. App‘x 494

Summary Calendar.

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:^*

Lever Sander Quintanilla-Salgado appeals from his within-guidelines sentence of 46 months of imprisonment and three years of supervised release following his guilty plea conviction for illegal reentry into the United States after deportation. He challenges the substantive reasonableness of his sentence, arguing that his sentence is unreasonable because it is greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a) and because it does not reflect his personal history and circumstances. He also argues that his sentence is unreasonable because the illegal reentry Guideline lacks an empirical basis and double counts criminal history, and illegal reentry essentially is a mere trespass offense. He concedes that his challenge to the lack of an empirical basis for the illegal reentry Guideline is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009).

We review sentences for substantive reasonableness, in light of the § 3553(a) factors, under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A within-guidelines sentence is entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). We have rejected the argument that illegal reentry is merely a trespass offense that is treated too harshly under U.S.S.G. § 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Quintanilla-Salgado‘s disagreement with the district court‘s weighing of the § 3553(a) factors is insufficient to rebut the presumption of reasonableness that attaches to a within-guidelines sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). “[T]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.2008). The fact that we “might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.Ct. 586.

Quintanilla-Salgado has not demonstrated that the district court abused its discretion by sentencing him to a within-guidelines sentences of 46 months. See id. at 51, 128 S.Ct. 586. The judgment of the district court is AFFIRMED.

Victor C. FOURSTAR, JR., Petitioner-Appellant, v. Ricardo MARTINEZ, Respondent-Appellee.

No. 13-30510

United States Court of Appeals, Fifth Circuit

Oct. 15, 2013

543 F. App‘x 494

Summary Calendar. Victor C. Fourstar, Jr., Tucson, AZ, pro se.

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:^*

Victor Fourstar, Jr., federal prisoner # 07418-046, appeals the dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 petition, in which he challenged (1) the validity of his 2002 conviction of, and 188-month sentence for, aggravated sexual abuse in violation of 18 U.S.C. § 2241(a) and (2) the use of an underlying state-court conviction to enhance that sentence. We review de novo the district court‘s determinations that Fourstar‘s claims arose under 28 U.S.C. § 2255 and that he had not met the requirements to proceed with a § 2241 petition under the savings clause of § 2255(e). Padilla v. United States, 416 F.3d 424, 425 (5th Cir.2005).

If his brief is liberally construed, Fourstar appears to argue, for the first time, that his § 2241 petition falls within the savings clause based on Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Because the argument is raised for the first time on appeal, we will not consider it. See Wilson v. Roy, 643 F.3d 433, 435 n. 1 (5th Cir.2011). Even if we were to consider the newly raised argument, Fourstar cannot rely on Bailey to satisfy the savings clause because Bailey involved a firearms offense, not a sexual abuse offense, and was decided in 1995, well before Fourstar‘s 2002 conviction. Thus, Fourstar has failed to meet the actual-innocence and retroactivity requirements of the savings clause. See Bailey, 516 U.S. at 143, 116 S.Ct. 501; see also Reyes-Requena v. United States, 243 F.3d 893, 900-01, 903-04 (5th Cir.2001).

The instant appeal is without arguable merit and is therefore frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Accordingly, the appeal is DISMISSED. See 5TH CIR. R. 42.2. Additionally, because Fourstar‘s § 2241 petition is repetitive of earlier filings, he is cautioned that the filing of future frivolous, repetitive, or otherwise abusive challenges to his conviction or sentence will invite the imposition of sanctions, including dismissal, monetary sanctions, and restrictions on his ability to file pleadings in this court or any court subject to this court‘s jurisdiction.

Notes

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. 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.