     Case: 11-51100     Document: 00511934170         Page: 1     Date Filed: 07/26/2012




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

                                                                            FILED
                                                                            July 26, 2012
                                     No. 11-51100
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUBEN ALBERTO GUERRERO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1638-1


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Ruben Alberto Guerrero appeals the within-Guidelines sentence of 57
months of imprisonment imposed following his guilty plea to illegal reentry in
violation of 8 U.S.C. § 1326. Guerrero argues that his sentence is substantively
unreasonable because it is greater than necessary to achieve the sentencing
goals of 18 U.S.C. § 3553(a), particularly in light of the district court’s refusal to
apply a proposed, but not yet enacted, amendment to U.S.S.G. § 2L1.2(b).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51100   Document: 00511934170      Page: 2    Date Filed: 07/26/2012

                                  No. 11-51100

      In evaluating a sentence for substantive reasonableness, this court applies
an abuse of discretion standard of review, and within-Guidelines sentences enjoy
a presumption of reasonableness. United States v. Gutierrez-Hernandez, 581
F.3d 251, 254 (5th Cir. 2009). “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).
      “[T]he staleness of a prior conviction that is used in the proper calculation
of a guidelines-range sentence does not render a sentence substantively
unreasonable[.]” United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011).
Nor does it destroy the presumption of reasonableness that attaches to such a
sentence. Id. Further, a sentence is not substantively unreasonable because a
district court refuses to go below the guidelines range based on an amendment
to the Guidelines that was not applicable at the time of sentencing. See, e.g.,
United States v. Scott, 654 F.3d 552, 557-58 (5th Cir. 2011). The district court
considered, but rejected Guerrero’s attempt to minimize the seriousness of his
prior offenses, noting that Guerrero’s criminal history perhaps even understated
his dangerousness. Guerrero’s purported “benign” motive for illegally returning
to this country also is not sufficient to rebut the appellate presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008). Finally, as to his assertion that the § 3553(a) factors of deterrence
and protection of the public were mitigated, Guerrero has not shown that the
district court made a clear error in balancing those factors against his criminal
history. See Cooks, 589 F.3d at 186.
      AFFIRMED.




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