United States v. Victor Estupinan-Solis

591 F. App'x 260

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 22, 2015
• Docket: 14-50354
• Status: Unpublished

Opinion

PER CURIAM: *

Victor Estupinan-Solis (Estupinan) appeals his 53-month sentence for illegal reentry. He contends that his sentence, which falls within the applicable guidelines range, is substantively unreasonable and greater than necessary in light of the 18 U.S.C. § 3553(a) factors.

This court reviews the substantive reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).' “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). As Estupinan properly concedes, his argument that the presumption of reasonableness should not apply in his case because U.S.S.G. § 2L1.2 lacks an empirical basis is foreclosed by our precedent. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009).

We have rejected previously Estupinan’s argument that § 2L1.2’s double-counting of a prior conviction in the calculation of a defendant’s offense level and criminal history score necessarily renders a sentence unreasonable. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009). Likewise, we have rejected substantive reasonableness challenges based on the alleged lack of seriousness of illegal reentry. United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.2006). The district court, which was “in a superior position to find facts and judge their import under § 3553(a),” acknowledged Estupinan’s -mitigating arguments but concluded that a sentence near the middle of the guidelines range was appropriate in light of his criminal history. Estupinan has failed to make the showing necessary to rebut the presumption of reasonableness afforded his sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.