     Case: 10-20553     Document: 00511543878         Page: 1     Date Filed: 07/19/2011




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

                                                                            FILED
                                                                            July 19, 2011
                                     No. 10-20553
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MOISES CARBAJAL SANCHEZ, also known as Moises Carbajal Sanchez, also
known as Juan Tapia, also known as Arturo Martinez-Ruiz, also known as
Moises Sanchez-Carbajal, also known as Moises Carbajal,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-180-1


Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
        Moises Carbajal Sanchez (Carbajal) appeals his sentence following his
guilty plea conviction for illegal reentry into the United States by a previously
deported alien after a felony conviction. Carbajal was assessed the 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(vii) because he was previously
removed after being convicted of an alien smuggling offense in 1992, namely


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20553

conspiracy to bring into and land and transport certain aliens within the United
States. The district court sentenced Carbajal to 45 months of imprisonment, one
month below his guidelines range. Carbajal challenges the procedural and
substantive reasonableness of his sentence.
      After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). We first
examine whether the district court committed any significant procedural error,
“such as . . . treating the Guidelines as mandatory . . . or failing to adequately
explain the chosen sentence.” Id. at 51. If the district court’s decision is
procedurally sound, we will then consider the substantive reasonableness of the
sentence under an abuse-of-discretion standard. See id.
      Carbajal argues that the district court committed procedural error by
failing to make an individualized assessment of whether the 16-level
enhancement should have been applied under his circumstances and whether
the enhancement resulted in a sentence that was greater than necessary under
18 U.S.C. § 3553(a). He also contends that the district court’s explanation of its
reasons for the sentence was inadequate given his nonfrivolous arguments for
a lesser sentence. These arguments were not preserved by Carbajal’s general
objection to his sentence as “procedurally unreasonable and greater than
necessary” to comply with § 3553(a) and are reviewed under the plain error
standard. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009).
      A district court must make an individualized assessment of the § 3553(a)
factors based on the facts presented in the case and “must adequately explain
the chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.” Gall, 552 U.S. at 50; Mondragon-Santiago, 564
F.3d at 360. Based on our review of the record, the district court’s statements
at sentencing reflect that it performed the requisite individualized assessment
of Carbajal’s case based on the facts presented, including his assertions

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                                  No. 10-20553

concerning the age and circumstances of the conspiracy conviction underlying
his 16-level enhancement as well as his policy arguments against the 16-level
enhancement. Additionally, the district court’s explanation of the reasons for its
sentence were adequate. See Rita v. United States, 551 U.S. 338, 356-58 (2007).
Carbajal has not shown error, plain or otherwise, with respect to these issues.
      Citing United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009),
Carbajal contends that the staleness of his conspiracy conviction, coupled with
the minor nature of his other prior convictions, renders his sentence
substantively unreasonable. Carbajal had thrice illegally reentered the United
States and been deported before his instant offense and had four convictions
since his 1992 conspiracy conviction. The district court opined that Carbajal had
received “very lenient treatment” for his past criminal conduct.           “[T]he
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). Carbajal’s sentence does
not amount to an abuse of discretion by the district court.
      Carbajal also wishes to preserve for further review the argument that a
presumption of reasonableness should not apply to within-guidelines sentences
calculated under § 2L1.2 because § 2L1.2 was not the result of empirical
evidence or study. He correctly concedes that such an argument is foreclosed by
our precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
      AFFIRMED.




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