     Case: 14-50337      Document: 00512865869         Page: 1    Date Filed: 12/11/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50337
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 11, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSE ANTONIO FAUSTINO-RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-812-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Antonio Faustino-Rodriguez (Faustino) pleaded guilty to illegal
reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to
78 months of imprisonment and three years of supervised release. Faustino
challenges the substantive reasonableness of his sentence, arguing that his
sentence is unreasonable because it is greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a). He asserts that the 78-month sentence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50337     Document: 00512865869     Page: 2   Date Filed: 12/11/2014


                                  No. 14-50337

far exceeds the average sentence imposed in cases involving illegal reentry
after deportation and that the sentence failed to take into account his personal
circumstances and characteristics, such as his expression of contrition and
promise to never return to this country.
      We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007).       A within-guidelines sentence is entitled to a
presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). “The presumption is rebutted only upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
      None of Faustino’s arguments are sufficient to rebut the presumption of
reasonableness.      First, this court has rejected the argument that the
Guidelines overstate the seriousness of illegal reentry because it is a
nonviolent offense. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006). Second, we have also recognized that a claim of benign motive for
reentry fails to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Finally, the assertion
that Faustino’s sentence is higher than the average sentence imposed in an
illegal reentry case does not render the sentence he received an abuse of
discretion. See United States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007).
That is especially true because Faustino is not an average illegal reentry
defendant.   He received a sixteen point enhancement because a previous
deportation had followed a federal drug trafficking offense for which the
sentence exceeded thirteen months. He also has two prior illegal reentry



                                        2
    Case: 14-50337   Document: 00512865869     Page: 3   Date Filed: 12/11/2014


                                No. 14-50337

convictions–one in 2003 that resulted in a 48 month term of imprisonment and
one in 2008 that resulted in a 60 month term of imprisonment. The district
court in this case mentioned the inability of the 60 month sentence to deter
Faustino in imposing the lengthier sentence this time.
     For these reasons, Faustino has not demonstrated that the district court
abused its discretion when it sentenced him to a within-guidelines sentence of
78 months. See Gall, 552 U.S. at 51. The judgment of the district court is
AFFIRMED.




                                      3
