     Case: 11-20108     Document: 00511759754         Page: 1     Date Filed: 02/15/2012




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

                                                                            FILED
                                                                         February 15, 2012
                                     No. 11-20108
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ARTURO ROLANDO ESCAMILLA JASSO, also known as Arthur Rolando
Escamilla, also known as Arurto Roland Escamilla, also known as Arthur R.
Escamilla, also known as Arthur Roland Escamilla,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-448-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Arturo Rolando Escamilla Jasso (Escamilla) was
convicted of being illegally present in the United States after having been
deported following a conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). He was sentenced within the Sentencing Guidelines to 70




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20108    Document: 00511759754      Page: 2    Date Filed: 02/15/2012

                                  No. 11-20108

months of imprisonment. He appeals his sentence, claiming that it is both
procedurally and substantively unreasonable.
      We review sentences for reasonableness in light of the sentencing factors
in 18 U.S.C. § 3553(a). United States v. Mondragon-Santiago, 564 F.3d 357, 360
(5th Cir. 2009). Our review is bifurcated. Gall v. United States, 552 U.S. 38, 51
(2007). We first determine whether the sentencing court committed a significant
procedural error, such as failing to calculate or incorrectly calculating the
guidelines range, treating the Guidelines as mandatory, failing to consider the
factors in § 3553(a), basing the sentence on clearly erroneous facts, or failing to
adequately explain the sentence. Id. If we conclude that the district court’s
decision is procedurally sound, we will then proceed to review the substantive
reasonableness of the sentence imposed, applying an abuse-of-discretion
standard. See United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir.
2009).   “A discretionary sentence imposed within a properly calculated
guidelines   range    is   presumptively    reasonable.”       United    States     v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (internal quotation marks
and citation omitted).
      Although Escamilla contends that a presumption of reasonableness should
not apply to his within-guidelines sentence because U.S.S.G. § 2L1.2, the illegal
reentry Guideline under which he was sentenced, is not empirically based, his
argument is foreclosed. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir.
2009) (addressing § 2L1.2 and the application of the presumption of
reasonableness); see also Mondragon-Santiago, 564 F.3d at 366-67 (concluding
on plain error review that the holding in Kimbrough v. United States, 552 U.S.
85 (2007), does not require courts to discard the presumption of reasonableness
for sentences based on Guidelines that are not empirically grounded).
      Escamilla also asserts that the district court “treated the Guidelines range
as the presumptive and reasonable sentencing range,” gave too much weight to
the guidelines range and not to the sentencing factors set forth in § 3553(a), and

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                                  No. 11-20108

failed to explain adequately the sentence that it imposed. As he did not object
in the district court on these grounds, we review his claim for plain error. See
Mondragon-Santiago, 564 F.3d at 361. Accordingly, he must demonstrate an
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 129 S. Ct. 1423, 1429 (2009). If such a showing is made, we
have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id. As the
record does not support Escamilla’s assertions, he has failed to demonstrate that
the district court committed a clear or obvious error.
      Escamilla also contends that his sentence is unreasonable because the
district court failed to take into account the “more severe restrictions imposed
upon” him based on his status as an illegal alien, such as his inability to
participate in particular rehabilitative programs, as well as the “unique
circumstances” of his cultural assimilation. A defendant’s status as a deportable
alien cannot serve as a ground for a downward departure if the defendant is
sentenced for an immigration offense of which his alien status is an element, as
is the case here. See United States v. Garay, 235 F.3d 230, 232-34 & nn.13, 18,
& 19 (5th Cir. 2000). Moreover, the district court was not required to give
Escamilla’s cultural-assimilation argument dispositive weight, so it did not
abuse its discretion in refusing to do so. See United States v. Rodriguez, 660
F.3d 231, 234-35 (5th Cir. 2011) (“Although cultural assimilation can be a
mitigating factor and form the basis for a downward departure, nothing requires
that a sentencing court must accord it dispositive weight.”) (internal quotation
marks and citation omitted).
      Escamilla has failed to demonstrate that his sentence is procedurally
unreasonable or to rebut the presumption of reasonableness afforded his within-
guidelines sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009). Accordingly, the judgment of the district court is AFFIRMED.



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