     Case: 10-40265 Document: 00511432971 Page: 1 Date Filed: 04/01/2011




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

                                                 FILED
                                                                             April 1, 2011
                                     No. 10-40265
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JUAN SANCHEZ-GODOY,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:09-CR-808-1


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Juan Sanchez-Godoy appeals his sentence following his guilty plea
conviction for illegal reentry into the United States.                Sanchez-Godoy was
sentenced within his advisory guidelines range to 63 months of imprisonment
and three years of supervised release.             He 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). This court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-40265 Document: 00511432971 Page: 2 Date Filed: 04/01/2011

                                  No. 10-40265

first examines whether the district court committed any significant procedural
error. Id. at 51. If the district court’s decision is procedurally sound, this court
will then consider the substantive reasonableness of the sentence under an
abuse-of-discretion standard. Id.
      Sanchez-Godoy contends that the district court committed significant
procedural error by violating separation of powers principles when it declined to
impose a downward variance equivalent to the one-level reduction he could have
received had the Government filed a motion pursuant to United States
Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1(b) regarding acceptance of
responsibility. Sanchez-Godoy also contends that the district court’s denial of
his request for a downward variance amounted to the significant procedural
error of treating the Guidelines as mandatory. De novo review applies to these
arguments. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008); United States v. Newson, 515 F.3d 374, 376 (5th Cir. 2008). The record
reflects that the district court was aware of its discretionary authority to grant
a downward variance for acceptance of responsibility and declined to exercise
that discretion as a means of compensating for the Government’s refusal to file
a motion under § 3E1.1(b). Because the district court did not misapprehend its
authority to grant a downward variance for acceptance of responsibility,
Sanchez-Godoy’s arguments concerning the separation of powers doctrine and
treatment of the Guidelines as mandatory are unavailing.
      Sanchez-Godoy contends that his sentence is substantively unreasonable
because the district court applied the 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(vii) without adequate consideration of the nuances and details
of the conviction supporting that enhancement, namely his 2003 conviction for
transporting an undocumented alien within the United States by means of a
motor vehicle. Sanchez-Godoy also notes that his only other prior conviction was
a 2005 conviction for the nonviolent offense of illegal reentry into the United
States.

                                         2
    Case: 10-40265 Document: 00511432971 Page: 3 Date Filed: 04/01/2011

                                     No. 10-40265

      “[A]   sentence   within   a     properly   calculated   Guideline   range   is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see Gall, 552 U.S. at 51 (recognizing that appellate courts may, but are
not required to, apply a presumption of reasonableness to sentences within
properly calculated guidelines range). The district court listened to and rejected
Sanchez-Godoy’s arguments regarding the mitigating aspects of his criminal
history, including his 2003 conviction for transporting an undocumented alien.
“[T]he sentencing judge is in a superior position to find facts and judge their
import under [18 U.S.C.] § 3553(a) with respect to a particular defendant.”
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
Sanchez-Godoy has not rebutted the presumption of reasonableness applicable
to his sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008); Alonzo, 435 F.3d at 554.
      Sanchez-Godoy also wishes to preserve for further review the argument
that a presumption of reasonableness should not apply to sentences calculated
under U.S.S.G. § 2L1.2 because § 2L1.2 was not the result of empirical evidence
or study. He correctly concedes that such an argument is foreclosed by this
court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.),
cert. denied, 130 S. Ct. 378 (2009).
      AFFIRMED.




                                          3
