     Case: 12-20631       Document: 00512333488           Page: 1    Date Filed: 08/06/2013




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

                                                                              FILED
                                                                            August 6, 2013
                                     No. 12-20631
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

NELSON CASTRO CASTILLO, also known as Nelson Castillo G. Castro, also
known as Nelson Geovany Castro, also known as Nelson Castro C., also known
as Gregorio Selaya Puerto, also known as Avillio Castro Argeta, also known as
Nelson Castillo Castro, also known as Nelson Castro-Castillo, also known as
Jose Sosa, also known as Carlos Manuel Bonilla, also known as Nelson Castillo,
also known as Nelson Geovanny Castro Castillo,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-593-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Nelson Castro Castillo appeals the below-guidelines sentence of 76
months of imprisonment imposed following his guilty plea conviction for illegal



       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-20631     Document: 00512333488     Page: 2   Date Filed: 08/06/2013

                                  No. 12-20631

reentry by a previously deported alien after conviction of an aggravated felony.
He argues the following. His sentence violates the Eighth Amendment because
the 16-level enhancement that he received under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
was applied indiscriminately and was used to calculate both his offense level
and criminal history category. He was inordinately punished based upon his
prior conviction of an aggravated felony and the enhancement constitutes cruel
and unusual punishment because it applies regardless of the facts underlying
a defendant’s prior conviction. There is no empirical basis to justify treating
all prior convictions for aggravated felonies the same under § 2L1.2 and his
sentence is substantively unreasonable because a sentence that includes an
enhancement under § 2L1.2 results from impermissible double counting and,
therefore, is greater than necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a).
      Our review is limited to plain error because Castro Castillo did not raise
these arguments in the district court. See United States v. Neal, 578 F.3d 270,
272 (5th Cir. 2009). To prevail on plain error review, Castro Castillo must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such
a showing, we have the discretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      Castro Castillo’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 greatly
disproportionate to the offense because such sentences are “cruel and unusual.”
McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992). In deciding whether a
sentence is unconstitutionally disproportionate, we make a threshold
comparison between the gravity of the offense and the severity of the sentence.


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                                  No. 12-20631

Id. at 315-16. In non-capital cases, successful challenges to the proportionality
of sentences are “exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272
(1980).
      The district court imposed a 76-month prison sentence that was within
the statutory limits for the offense and that was below the properly calculated
guidelines range, which is considered to be a “convincing objective indicator of
proportionality.” 8 U.S.C. § 1326(b)(2); see United States v. Cardenas-Alvarez,
987 F.2d 1129, 1134 (5th Cir. 1993) (internal quotation marks and citation
omitted). Castro Castillo has not otherwise established that his sentence was
grossly disproportionate to the severity of his offense of illegal reentry after an
aggravated felony conviction. See Rummel, 445 U.S. at 265-66. Thus, he has
not demonstrated plain error in this regard. See Cardenas-Alvarez, 987 F.2d
at 1134; Puckett, 556 U.S. at 135.
      His remaining challenges to the excessiveness of his sentence are equally
unavailing. The use of his prior conviction to calculate both his offense level
and criminal history category was permissible, see United States v. Duarte, 569
F.3d 528, 529-30 (5th Cir. 2009), his sentence was not excessive, and he has
failed to identify any precedent holding that the double counting of his prior
conviction results in a sentence that violates the Eighth Amendment. See
United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009). His claim that §
2L1.2 produces disproportionate sentences because it does not take into
account the defendant’s prior conduct or the differences in severity among
underlying prior convictions that trigger a 16-level enhancement lacks merit.
See United States v. Rayo-Valdez, 302 F.3d 314, 317 (5th Cir. 2002);
Cardenas-Alvarez, 987 F.2d at 1134. We have expressly rejected the argument
that § 2L1.2’s alleged lack of an empirical basis renders unreasonable a
sentence imposed under that Guideline and have indicated that courts need not


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                                No. 12-20631

examine the empirical grounding behind every Guideline. See Duarte, 569 F.3d
at 529-31.    Castro Castillo’s claim that his sentence is substantively
unreasonable because it resulted from double-counting is, as he acknowledges,
foreclosed by existing precedent. See id. at 529-30.
      The judgment of the district court is AFFIRMED.




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