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United States v. Francisco Rodriguez-Alvarez
668 F. App'x 556
| 5th Cir. | 2016
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*1 Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.

PER CURIAM: [*]

Francisco Rodriguez-Alvarez appeals the 78-month term of imprisonment imposed for his conviction of being found in the United States without permission, following removal and the consecutive 18-month term of imprisonment imposed following the revocation of his supervised release for a prior illegal reentry offense. He argues that the combined sentences are greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).

Because Rodriguez-Alvarez did not object to the reasonableness of either sentence in the district court, we will review the sentences for only plain error. See United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2007). [1] To show plain error, Rodriguez-Alvarez must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

Because Rodriguez-Alvarez’s sentence for the illegal reentry offense fell within his advisory sentencing guidelines range and Rodriguez-Alvarez’s revocation sentence fell within the range recommended by the guidelines policy statements, both are subject to a presumption of reasonableness. See United States v. Campos-Maldonado , 531 F.3d 337, 338 (5th Cir. 2008); United States v. Lopez-Velasquez , 526 F.3d 804, 809 (5th Cir. 2008). Rodriguez-Alvarez argues that the sentence imposed for his illegal reentry offense should not be accorded a presumption of reasonableness because the applicable Guideline, U.S.S.G. § 2L1.2, is not derived from empirical data. However, he concedes that his argument is foreclosed. United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago , 564 F.3d 357, 366-67 (5th Cir. 2009). He raises the argument solely to preserve it for possible further review.

This court has rejected the arguments that Rodriguez-Alvarez indicates warranted a shorter sentence, namely, that § 2L1.2 lacks an empirical basis, overstates the seriousness of what essentially is a non-violent international trespass, and places too heavy an emphasis on a defendant’s criminal history by double counting prior convictions in the offense level and in the criminal history calculation. Duarte , 569 F.3d at 529-31; Mondragon-Santiago , 564 F.3d at 366-67; United States v. Juarez-Duarte , 513 F.3d 204, 212 (5th Cir. 2008).

Rodriguez-Alvarez argues in light of his advanced age that a shorter sentence should have been imposed for his illegal reentry offense and for revocation of his supervised release. At sentencing, the district court considered the relevant § 3553(a) factors, the advisory sentencing guidelines and policy guidelines ranges, the facts and mitigating arguments, including Rodriguez-Alvarez’s age, and determined, based on Rodriguez-Alvarez’s criminal history, that a sentence within the advisory guidelines range for each offense was sufficient to achieve the sentencing goals of § 3553(a). Rodriguez- Alvarez’s disagreement with the propriety of his sentence and the court’s weighing of the § 3553(a) factors is insufficient to rebut the presumption of reasonableness that attaches to his sentences. See United States v. Koss F.3d 460, 472 (5th Cir. 2016); United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). Accordingly, Rodriguez-Alvarez has not established plain error.

The judgments of the district court are AFFIRMED.

[*] Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4.

[1] Rodriguez-Alvarez argues that plain error review is inapplicable because objections to the reasonableness of his sentences were not required to preserve his arguments for appeal. He notes a circuit split regarding the standard of review for substantive- reasonableness claims not raised in the district court. However, Rodriguez-Alvarez’s argument is foreclosed. See Peltier , 505 F.3d at 391-92. He raises the issue solely to preserve it for possible further review.

Case Details

Case Name: United States v. Francisco Rodriguez-Alvarez
Court Name: Court of Appeals for the Fifth Circuit
Date Published: Aug 25, 2016
Citation: 668 F. App'x 556
Docket Number: 15-51081 c/w 15-51100 Summary Calendar
Court Abbreviation: 5th Cir.
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