     Case: 10-50358 Document: 00511319949 Page: 1 Date Filed: 12/13/2010




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

                                                 FILED
                                                                         December 13, 2010
                                     No. 10-50358
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FAUSTO MIRELES-RODRIGUEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-205-1


Before HIGGINBOTHAM, SMITH, and PRADO, Circuit Judges.
PER CURIAM:1
       Fausto Mireles-Rodriguez pled guilty in May 2009 to illegally reentering
the United States following deportation in violation of 8 U.S.C. § 1326. Because
he was convicted by the state of Texas of committing aggravated assault in 1990,
Mireles     received     a    sixteen-level     base-offense-level        increase     under
§ 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines. His adjusted
offense level combined with his criminal-history score produced an advisory
sentencing range of seventy to eighty-seven months imprisonment. The district

       1
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50358

court imposed a within-Guidelines sentence of seventy months. On appeal,
Mireles argues that his sentence was substantively unreasonable because it was
greater than necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a).
We conclude that Mireles cannot overcome the presumption of reasonableness
that attaches to his within-Guidelines sentence and affirm Mireles’s sentence.
      The Guidelines vest district courts with broad sentencing discretion.
United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007), abrogated on other
grounds by Gall v. United States, 552 U.S. 38, 50-51 (2007). We review the
district court’s sentence for substantive reasonableness in light of the sentencing
factors enumerated in 18 U.S.C. § 3553(a)(1)-(7). United States v. Mares, 402
F.3d 511, 518-19 (5th Cir. 2005). We apply the abuse of discretion standard,
taking into account the totality of the circumstances and presuming that a
sentence within a properly calculated Guidelines range is reasonable. Gall, 552
U.S. at 51; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The
presumption of reasonableness that attaches to a properly calculated guideline
sentence “is rebutted only upon a showing that the sentence does not account for
a factor that should receive significant weight,” “gives significant weight to an
irrelevant or improper factor,” or “represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).
      The district court considered the appropriate sentencing factors under
§ 3553(a) as well as Mireles’s arguments for a downward departure. Mireles
advances five criticisms of the district court’s approach. They do not persuade
us that the district court imposed a substantively unreasonable sentence.
      First, Mireles argues that the district court did not consider the
remoteness or staleness of the 1990 conviction for aggravated assault that was
the basis for his sixteen-level sentence enhancement under § 2L1.2(b)(1)(A)(ii).
But Mireles was thirty-two years old when he committed the aggravated assault,
and the commentary to § 2L1.2(b)(1) specifically instructs that only convictions

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                                       No. 10-50358

for offenses committed before the defendant turned eighteen are too remote or
stale to serve as the predicate for the enhancement, see U.S. S ENTENCING
G UIDELINES M ANUAL § 2L1.2 cmt. n.1(A)(iv) (2010).                 Consistent with the
commentary, we have previously held that it is not an abuse of discretion for a
district court to apply the sixteen-level crime-of-violence enhancement under
§ 2L1.2(b)(1)(A)(ii) based on a conviction that is so remote that the defendant
does not receive any criminal-history points for it. See, e.g., United States v.
Noriega Cisneros, 311 F. App’x 716, 718 (5th Cir. 2009) (per curiam).2
       Second, Mireles argues that his sentence was unreasonable because he
committed the aggravated assault for which he was convicted by threat, not by
physical force. Again, we have previously considered and rejected this argument.
See, e.g., United States v. Garcia-Ramirez, 230 F. App’x 458, 460 (5th Cir. 2007)
(per curiam) (citing United States v. Guillen-Alvarez, 489 F.3d 197, 200 (5th Cir.
2007)).
       Third, Mireles argues that the district court failed to account for the fact
that his motive for returning to the United States was to earn money so he could
support his family. But we have previously held that a defendant’s contention
that he was acting with good motives is not sufficient to rebut the presumption
of reasonableness that attaches to a within-Guidelines sentence.                   See, e.g.,
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008), cert.
denied, 129 S. Ct. 624 (2009).
       Fourth, Mireles argues that because he had never before served a term of
imprisonment longer than twelve months, his seventy-month sentence was
greater than necessary to deter him from committing future crimes or to protect
the public.     However, the district court concluded that a bottom-of-the-
Guidelines sentence was necessary to provide sufficient deterrence and public



       2
        This opinion cites various unpublished prior decisions of this Court not because those
decisions bind us but because their reasoning persuades us.

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                                  No. 10-50358

protection in light of Mireles’s extensive and serious criminal history. This
conclusion was not an abuse of discretion. See, e.g., United States v. Diaz
Sanchez, 320 F. App’x 264, 264 (5th Cir. 2009) (per curiam).
      Finally, Mireles argues that his within-Guidelines sentence should not
enjoy a presumption of substantive reasonableness because § 2L1.2 lacks
empirical foundation.    As he acknowledges, this argument is foreclosed by
Circuit precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.),
cert. denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v.
Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008).
      We will not vacate a within-Guidelines sentence merely because a district
could reasonably have decided to impose a different sentence. See Campos-
Maldonado, 531 F.3d at 339 (“Appellate review is highly deferential as the
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.”). Mireles has failed to
overcome the presumption of reasonableness accorded his sentence and cannot
demonstrate that the district court abused its discretion when it chose to
sentence him at the low end of the applicable Guidelines range.
      AFFIRMED.




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