     Case: 11-20880       Document: 00512070516         Page: 1     Date Filed: 12/03/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         December 3, 2012
                                     No. 11-20880
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PABLO ANTONIO PORTILLO NAVARRETE, also known as Pablo Antonio
Portillo, also known as Pablo Antonio Portillo-Navarrete, also known as Pablo
A. Portillo-Navarrete,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-365-1


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       Pablo Antonio Portillo Navarrete appeals the 70-month within-guidelines
sentence he received following his guilty plea to illegal reentry into the United
States after deportation. Navarrete argues that his sentence violates the Fifth
and Eighth Amendments of the Constitution and is greater than necessary to
meet the sentencing goals of 18 U.S.C. § 3553(a). He specifically contends that


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-20880

(1) his sentence is grossly disproportionate to the seriousness of his crime of
conviction, in violation of the prohibition against cruel and unusual punishment;
(2) enhancing his sentence based on a previous drug trafficking offense resulted
in an unwarranted sentencing disparity in violation of the Equal Protection
Clause; and (3) the district court did not consider his particular circumstances,
such as his benign motive for illegally reentering the country.
      Ordinarily, we review constitutional claims de novo. United States v.
Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). However, because Navarrete
did not raise any constitutional objections to his sentence in the district court,
we review for plain error only. See United States v. Ferguson, 211 F.3d 878, 886
(5th Cir. 2000). Likewise, because Navarrete failed to object to the substantive
reasonableness of his sentence, review is for plain error only. See United States
v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
      Navarrete’s assertion that his sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment is without merit. The Eighth
Amendment prohibits a sentence that is grossly disproportionate to the severity
of the crime for which it is imposed. Solem v. Helm, 463 U.S. 277, 288 (1983).
When evaluating an Eighth Amendment proportionality challenge, we make a
threshold comparison between the gravity of the charged offense and the
severity of the sentence. McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir.
1992). In non-capital cases, successful challenges to the proportionality of
particular sentences are “exceedingly rare.” Rummel v. Estelle, 445 U.S. 263,
272 (1980).
      In the instant case, Navarrete’s 70-month prison sentence is not grossly
disproportionate to the severity of his illegal reentry crime when measured
against the benchmark in Rummel, 445 U.S. at 284-85.                Additionally,
Navarrete’s sentence is within the properly calculated guidelines range, which
is a “convincing objective indicator of proportionality.” See United States v.
Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993) (internal quotation marks

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                                  No. 11-20880

and citation omitted) (rejecting an Eighth Amendment challenge to a 100-month
within-guidelines sentence imposed for attempted illegal reentry). Accordingly,
Navarrete cannot demonstrate plain error. See Ferguson, 211 F.3d at 886.
      Equally without merit is Navarrete’s claim that his sentence violates the
Fifth Amendment’s Equal Protection Clause. We have previously concluded that
the “guidelines were devised to and do treat all” similarly-situated defendants
equally. Cardenas-Alvarez, 987 F.2d at 1134. Given that Navarrete’s guidelines
range was calculated in the same manner as that of any other illegal reentry
defendant who had previously been convicted of a drug trafficking crime, he
cannot demonstrate plain error. See Ferguson, 211 F.3d at 886.
      When reviewing the reasonableness of a sentence within a properly
calculated guidelines range, we generally will infer that the district court
considered the sentencing factors set forth in the Sentencing Guidelines and
§ 3553(a). United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The record
reflects that the district court considered the relevant § 3553(a) factors as well
as Navarrete’s arguments for mitigating his sentence but implicitly overruled
those arguments and concluded that a within-guidelines sentence was
appropriate. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
Accordingly, we decline Navarrete’s invitation to reweigh the § 3553(a) factors
because “the 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).
      His sentence, which is at the bottom of the guidelines range, is presumed
reasonable. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir.
2008). His general disagreement with the propriety of his sentence and the
district court’s weighing of the § 3553(a) factors are insufficient to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).

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                                No. 11-20880

     Navarrete has not demonstrated that the district court plainly erred by
sentencing him to a within-guidelines 70-month prison term. See Whitelaw, 580
F.3d at 259-60.
     The judgment of the district court is AFFIRMED.




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