     Case: 09-50628     Document: 00511067085          Page: 1    Date Filed: 03/31/2010




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

                                                  FILED
                                                                           March 31, 2010
                                     No. 09-50628
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAFAEL CARAZA-VALDEZ, also known as Salvador Rivera-Rivera,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-494-1


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
        Rafael Caraza-Valdez appeals the 37-month guidelines minimum sentence
imposed following his guilty plea conviction for illegally reentering the United
States in violation of 8 U.S.C. § 1326.             He asserts that his sentence was
substantively unreasonable because it was greater than necessary to achieve the
sentencing goals set forth in 18 U.S.C. § 3553(a). Caraza-Valdez asserts that the
Guidelines overstated the seriousness of his illegal reentry offense, which was
a non-violent, “international trespass” offense. He contends that he should have

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50628

received a downward variance because he came to this country as a young child,
he returned to see his family, his criminal history is non-violent, and he has been
a law-abiding citizen in Mexico since his removal in 1999. He further contends
that the 16-level enhancement overstated the seriousness of his prior alien
transporting conviction because of the age of the conviction. Finally, he asserts
that the Guidelines create an unwarranted sentencing disparity between him
and defendants who are convicted in districts with fast-track programs.
      We review the district court’s sentence for reasonableness in light of the
sentencing factors in 18 U.S.C. § 3553(a). 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 we may presume that a sentence
within a properly calculated guidelines range is reasonable. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).
      Although Caraza-Valdez challenges the presumption of reasonableness as
applied to sentences under U.S.S.G. § 2L1.2, he recognizes that the issue is
foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir.), cert. denied, 130 S. Ct. 192 (2009). Further, Caraza-Valdez concedes that
his challenge based on the lack of a fast-track program is foreclosed. See United
States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008).
      We have rejected the argument that a guidelines sentence under § 2L1.2
is unreasonable because illegal reentry is a mere trespass offense. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Nor do we accept the
argument that it is unreasonable to impose a 16-level enhancement under
§ 2L1.2 when the predicate conviction is too remote to receive criminal history
points. See § 2L1.2, comment. (n.(1)(B)(vii) (indicating that the date of the
enhancing conviction is not a relevant inquiry for purposes of § 2L1.2(b)(1)).
Likewise, Caraza-Valdez’s arguments that he came to this country as a young

                                        2
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                                No. 09-50628

child and that he returned to be with his family do not render his sentence
unreasonable.    See Gomez-Herrera, 523 F.3d at 565-66.        Finally, although
Caraza-Valdez claims to have been a law-abiding citizen in Mexico following his
removal in 1999, he points to nothing in the record to substantiate the claim.
      Caraza-Valdez concedes that the district court correctly calculated the
guidelines range. He has not shown that the district court abused its discretion,
and he has not overcome the presumption of reasonableness.             See Gall,
552 U.S. at 51; Alonzo, 435 F.3d at 554. Accordingly, the judgment of the district
court is AFFIRMED.




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