     Case: 14-10248      Document: 00512951175         Page: 1    Date Filed: 02/27/2015




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

                                    No. 14-10248
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                         February 27, 2015
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

ALFREDO CERVANTES-CARRILLO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:13-CR-199


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Alfredo Cervantes-Carrillo pleaded guilty, without the benefit of a plea
agreement, to illegally reentering the United States after he had been
deported. He now challenges his 46-month prison term, contending that it is
unreasonable on the grounds that he was improperly denied a third offense-
level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b), the
district court did not provide a sufficient explanation of its reasons for selecting


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10248

the sentence, and the sentence is substantively unreasonable. Because he
failed to raise any of these issues or object to his sentence in the district court,
our review is for plain error. See United States v. Garcia-Carrillo, 749 F.3d
376, 378 (5th Cir.), cert. denied, 135 S. Ct. 676 (2014) (offense-level reduction
under § 3E1.1(b)); United States v. Powell, 732 F.3d 361, 381 (5th Cir. 2013)
(substantive reasonableness); (United States v. Mondragon–Santiago, 564 F.3d
357, 361 (5th Cir. 2009) (explanation of the sentence).
      Cervantes-Carrillo received a two-level reduction to his offense level
under § 3E1.1(a) for accepting responsibility for his crime, but the Government
declined to move for an additional one-level reduction under § 3E1.1(b) because
he would not agree to waive his right to appeal. Effective November 1, 2013,
more than three months before Cervantes-Carrillo was sentenced, the
Sentencing Commission amended § 3E1.1’s commentary, instructing that the
Government should not refuse to move for the additional reduction based on
the defendant’s refusal to waive his appellate rights. § 3E1.1, comment. (n.6);
see U.S. Sentencing Guidelines Manual, supp. to app. C, Amendment 775, at
43-46 (2013); see also 28 U.S.C. § 994(p) (explaining that a guidelines
amendment takes effect unless “the effective date is revised or the amendment
is otherwise modified or disapproved by Act of Congress”).            Nonetheless,
Cervantes-Carrillo is not entitled to be resentenced on this basis because he
has not shown that there is a reasonable probability that he would have
received a shorter sentence if the district court had properly applied the
Guidelines. See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).
      The district court applied an advisory guidelines range of 46 to 57
months of imprisonment based on an offense level of 22 and a criminal history
category of II.   If Cervantes-Carrillo had received an additional one-level
reduction under § 3E1.1(b), the guidelines imprisonment range would have



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been 41 to 51 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). The
overlap between the two ranges is substantial, and Cervantes-Carrillo’s
sentence of 46 months of imprisonment falls within both ranges and squarely
in the middle of the lower range; thus, any error does not affect his substantial
rights. See Garcia-Carrillo 749 F.3d at 379. Moreover, the district court
explained that the sentence it chose “happen[ed] to be a guidelines sentence,”
which suggests that the court would have imposed the same sentence
regardless of the applicable guidelines range.
      Cervantes-Carrillo next asserts that the district court improperly
presumed that a within-guidelines sentence was reasonable and did not
adequately explain the sentence, omitting a discussion of many of the 18 U.S.C.
§ 3553(a) factors in favor of a “rote statement that [it] considered all relevant
factors.” A sentence is procedurally unreasonable if the district court does not
adequately explain it. Gall v. United States, 552 U.S. 38, 51 (2007). The
district court listened to defense counsel’s argument for a lenient sentence,
explained that it had taken into account the § 3553(a) factors, and chose the
sentence based on Cervantes-Carrillo’s criminal history and that he had been
deported previously. Nothing suggests that the district court presumed a
within-guidelines sentence to be reasonable. Indeed, the court explained that
the sentence it chose “happen[ed] to be a guidelines sentence,” which, again,
suggests that the court would have imposed the same sentence regardless of
the applicable guidelines range. The explanation was adequate under the
circumstances. See United States v. Diaz Sanchez, 714 F.3d 289, 293 (5th Cir.
2013).
      The arguments that Cervantes-Carrillo’s sentence is substantively
unreasonable fare no better in light of our presumption that his within-
guidelines sentence is reasonable. See United States v. Jenkins, 712 F.3d 209,



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214 (5th Cir. 2013). His contention that his cultural assimilation justified a
shorter sentence is insufficient to rebut the presumption. See United States v.
Rodriguez, 660 F.3d 231, 232, 234-35 (5th Cir. 2011) (rejecting a defendant’s
argument that his sentence was substantively unreasonable because the
district court failed to accord proper weight to his cultural assimilation).
Though a defendant’s cultural assimilation can be a mitigating factor at
sentencing and even support a downward departure, a sentencing court need
not give this factor dispositive weight. Id.; see U.S.S.G. § 2L1.2, comment.
(n.9). As for Cervantes-Carrillo’s argument that he should have received a
more lenient sentence because he returned to the United States to care for his
elderly mother, the district court was not required to impose a lighter sentence
on this basis. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008) (refusing to disturb the presumption of reasonableness where the
defendant was motivated to illegally reenter the United States in part to see
his ailing father). With regard to his contention that illegal reentry amounts
merely to an unauthorized border crossing and is a victimless crime, this court
has implicitly rejected the theory that this characterization of the offense
renders a within-guidelines sentence unreasonable.        See United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Finally, as to Cervantes-
Carrillo’s assertion that the 16-level enhancement to his offense level for being
deported after a conviction for a drug-related offense rendered the sentence
substantively unreasonable, it was within the district court’s discretion to
determine that the illegal reentry guideline generated a guidelines range that
was too high, see Gomez-Herrera, 523 F.3d at 557 n.1, but it was not required
to do so, see Mondragon-Santiago, 564 F.3d at 366-67.
      Although Cervantes-Carrillo disagrees with the weight that the district
court gave to some of the sentencing factors, we will not reweigh them. See



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United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011). He has failed
to show that the district court did not consider a factor that should have
received significant weight, gave significant weight to a factor it should have
discounted, or made a clear error of judgment when it balanced the relevant
factors.   See Jenkins, 712 F.3d at 214.      He thus has not rebutted the
presumption that his within-guidelines sentence is reasonable, much less has
he shown that the district court committed plain error. See id.
      The district court’s judgment is AFFIRMED.




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