Filed: Feb. 17, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-50365 Document: 00512534257 Page: 1 Date Filed: 02/17/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-50365 February 17, 2014 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCISCO ALBARRAN-SANCHEZ, Defendant - Appellant Cons. w/ No. 13-50388 UNITED STATES OF AMERICA, Plaintiff - Appellee v. FRANCISCO ALBARRAN-SANCHEZ, also known as Julian Jarfias Salazar, also known as Fra
Summary: Case: 13-50365 Document: 00512534257 Page: 1 Date Filed: 02/17/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-50365 February 17, 2014 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCISCO ALBARRAN-SANCHEZ, Defendant - Appellant Cons. w/ No. 13-50388 UNITED STATES OF AMERICA, Plaintiff - Appellee v. FRANCISCO ALBARRAN-SANCHEZ, also known as Julian Jarfias Salazar, also known as Fran..
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Case: 13-50365 Document: 00512534257 Page: 1 Date Filed: 02/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50365 February 17, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO ALBARRAN-SANCHEZ,
Defendant - Appellant
Cons. w/ No. 13-50388
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
FRANCISCO ALBARRAN-SANCHEZ, also known as Julian Jarfias Salazar,
also known as Francisco Alvarez-Sanchez, also known as Marco Antonio
Sandova Cruz,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-1156-1
USDC No. 2:12-CR-1842-1
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No. 13-50365
c/w No. 13-50388
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Francisco Albarran-Sanchez appeals the 24-month
within-guidelines sentence imposed for his illegal reentry conviction and the
16-month within-guidelines sentence imposed following revocation of
supervised release for a prior illegal reentry conviction. Albarran-Sanchez
claims that the sentence was greater than necessary to satisfy the
requirements of the 18 U.S.C. § 3553(a) factors. He asserts that the sentence
should not be subject to the presumption of reasonableness because U.S.S.G.
§ 2L1.2 lacks an empirical basis, but he acknowledges that this argument is
foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357, 365-67 (5th
Cir. 2009). He also claims that § 2L1.2 double-counted his criminal history and
overstated the seriousness of the offense, which is merely an international
trespass. He asserts that the sentence failed to reflect his personal history and
characteristics, including the facts that he came to the United States to obtain
work when he was 15 years old, earned much less when he was removed to
Mexico, returned to the United States to obtain work to support his United
States citizen son, his mother, and his sister, arguing that his motive mitigated
the seriousness of the offense.
We review sentences for reasonableness in light of the § 3553(a) factors,
applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38,
49-50 (2007). Under the bifurcated review process adopted in Gall, we first
consider whether the district court committed procedural error, then examine
the sentence for substantive reasonableness.
Gall, 552 U.S. at 51; United
States v. Johnson,
619 F.3d 469, 471-72 (5th Cir. 2010). A sentence within the
* 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.
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advisory guidelines range is entitled to a presumption of reasonableness.
United States v. Duarte, 569 F.3d 528, 529-31 & n.11 (5th Cir. 2009).
After the district court considered the PSR and Albarran-Sanchez’s
personal history and characteristics, it determined that a sentence within the
advisory guidelines range was appropriate. We have rejected the contention
that the use of prior convictions to increase the offense level and also to
calculate criminal history is impermissible double-counting. See Duarte, 569
F.3d at 529-31. We have also rejected the contention that illegal reentry is not
a serious offense, but only an international trespass. See United States v.
Juarez-Duarte,
513 F.3d 204, 212 (5th Cir. 2008). Albarran-Sanchez’s
disagreement with “the propriety of the sentence imposed” is not sufficient to
rebut the presumption of reasonableness. See United States v. Ruiz,
621 F.3d
390, 398 (5th Cir. 2010). As Albarran-Sanchez has not shown that the district
court failed to give proper weight to his arguments or a § 3553(a) factor, he has
failed to rebut the presumption of reasonableness that applies to his within-
guidelines sentence for the illegal reentry offense. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009).
Albarran-Sanchez has also failed to show that the revocation sentence
was substantively unreasonable. The 16-month sentence was within the
advisory policy range of 12 to 18 months of imprisonment. See U.S.S.G.
§§ 7B1.1, 7B1.4. The district court had the discretion to order that the
sentences be served consecutively. See 18 U.S.C. § 3584(a); U.S.S.G.
§§ 5G1.3(c) & comment. (n.3(C)), 7B1.3(f) & comment. (n.4) p.s.; see also United
States v. Cotroneo, 89 F.3d 510, 512 (5th Cir. 1996). As the sentence both fell
within the advisory range and was consistent with the Guidelines’ advice
regarding consecutive sentences, it is entitled to a presumption of
reasonableness. See United States v. Candia,
454 F.3d 468, 473 (5th Cir. 2006).
Albarran-Sanchez has failed to show that the district court abused its
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discretion by imposing the consecutive sentence or to rebut the presumption of
reasonableness. See United States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th
Cir. 2008). Further, the record supports the sentence in view of Albarran-
Sanchez’s criminal history and the facts that he was removed from the United
States five times, that he used numerous different aliases and two different
birth dates, and that he immediately returned to the United States after being
deported in June 2012. See United States v. Gonzalez,
250 F.3d 923, 929-31
(5th Cir. 2001).
AFFIRMED.
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