United States v. Perez-Escobar

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 3, 2023
• Docket: 22-20601
• Status: Unpublished

Opinion

Case: 22-20601 Document: 00516737241 Page: 1 Date Filed: 05/03/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-20601 FILED May 3, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Diego Perez-Escobar,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:22-CR-303-1 ______________________________

Before King, Higginson, and Willett, Circuit Judges. Per Curiam:* Diego Perez-Escobar pleaded guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1), and was sentenced to a within-guidelines term of 51 months’ imprisonment. He now appeals the substantive reasonableness of that sentence.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-20601 Document: 00516737241 Page: 2 Date Filed: 05/03/2023

No. 22-20601

We review the substantive reasonableness of a sentence under a deferential abuse-of-discretion standard. 1 Gall v. United States, 552 U.S. 38, 51 (2007). “If the sentencing judge exercises her discretion to impose a sentence within a properly calculated Guideline range, in our reasonableness review we will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). “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) (citations omitted). Perez-Escobar has not rebutted the presumption that his 51-month within-guidelines sentence was substantively reasonable. See United States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013). The district court considered his arguments for a downward departure and determined that a within- guidelines sentence was appropriate. Perez-Escobar has not shown that the sentence fails to “account for a factor that should [have] receive[d] significant weight,” gives “significant weight to an irrelevant or improper factor,” or “represents a clear error of judgment in balancing [the] sentencing factors.” Id. While Perez-Escobar’s sentence is significantly longer than his previous illegal-reentry sentence, this is because the prior illegal-reentry conviction and an intervening drug-offense conviction greatly increased his total offense level and his criminal history category. His arguments amount to a disagreement with the propriety of the sentence and the district court’s balancing of the sentencing factors. This is insufficient to rebut the presumption of reasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). AFFIRMED. _____________________ 1 Perez-Escobar preserved his challenge to the substantive reasonableness of his sentence by moving for a downward departure. See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766-67 (2020).